Relevancy is it relevant? 401

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Evidence Skinny

Davis 2011



  1. Is it relevant?

401 any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (just some effect, it doesn’t have to prove the issue)

402 Evidence that is not relevant is not admissible. (if there is not a disputed issue, then it is not relevant).

104(a)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, (b) In making its determination it is not bound by the rules of evidence except those with respect to privileges.

- Judge looks to:

(1) Materiality - bear on a fact of consequence (issues at stake in the proceeding, usually substantive law)

(2) Probativeany tendency to make existence of that fact more/less probable; lenient test – doesn’t need to be conclusive

  1. If it is relevant, Is it otherwise barred by a specialized rule of evidence?

Yes No

407 bars subsequent remedial measures  BUT not to prove  403 Balancing Test

to prove negligent/culpable conduct or defect ownership, control, feasibility

(if controverted), or to impeach

Tuer (hospital’s change in protocol was inadmissible

bc no demo of infeasibility & not used for impeachment)

Policy – increase safety by removing repair disincentives

408 bars compromise/negotiations talks to prove  BUT not to prove other things i.e.

liability for or invalidity of claim witness bias, lack of undue delay, or

obstruction of criminal investigation

Policy – avoid chilling settlement efforts

409 bars offer or payment of med expenses to  BUT not if it is an admission of guilt

prove liability

Policy – encourages offers to assist

410 bars plea discussions in criminal cases  BUT it is admissible to put with another

statement that D introduced or for perjury if D’s

Policy – a non-guilty D may have pleaded; statement was made under oath

exclusion will promote plea bargaining Biaggi – rejected immunity offer is admissible for D as

evidence of innocence

411 bars liability insurance or lack of it  BUT not to prove another purpose i.e. agency,

as an independent fact ownership control, or witness bias


Policy – unlikely that the insured are more careless;

jury might seek deep pockets; exclusion encourages

insurance and avoids windfall for opponent of an

insured party


  1. If evidence of other acts, what is it being offered to prove

Offered to prove a trait

if not barred, and not under 404(A), is it Offered for another purpose

offered to impeach

offered as habit or routine pract

Reputation or Opinion testimony


To prove action in conformity therewith on a particular occasion

Barred by 404(a)

(1) Colorful evidence that may bear too strongly on present charge;
(2) May justify a guilty verdict irrespective of guilt;
(3) evidence and rebuttal attempts could confuse/distract jury

--------- OR -----------

To prove 404(A) true exception1
(2)(A) Character of accused - Criminal D can show own pertinent trait & prosecutor can rebut or if D offers victim’s trait, pros. can show D has same trait

(2)(B) Character of alleged victim - Criminal D can show victim’s character, subject to 412/prosecutor can rebut, subject to 413, 414, and 415 limitations

(3) evidence of the character of a witness - as provided in rules 607, 608, and 609.


If true exception, check against 405

- Proof of Knowledge

Repeat hacking incident Prosecutors argue few people know how to hack & it’s not only the same incident, but the same company. This most likely would be allowed.

- Proof of Motive

FBI agents following van; driver shoots at them. Gov allowed to admit D’s prior attempted murder charge in WI & failure to appear as his motive to kill these agents.

- Proof of Identity

Carrying the same gun used in the killings can show identity with other evidence in the case.

TrenklerSignature evidence – crimes are so similar, motis operandi, that it’s almost like the person has put his signature on it. Prior bomb involvement ties into current Mass. bomb explosion charge. Under 404(b), there was such a special relevance & jury could reasonably determine the same person was responsible for both bombs.

- Narrative Integrity (Res Gestate- the whole thing; fill in blanks/show connections)

Russian Roulette testimony limited but allowed. Prosecution argues the jury might be leery of vague testimony, but if the gun was pointed toward her that’s convincing

- Absence of Accident

D shot his wife, but claimed it was an accident while cleaning his gun. Prosecution sought to admit evidence that D previously used the same defense with his first wife’s death. **Also, might fit under doctrine of chances

- Doctrine of Chances – chance something happens repeatedly; jury infers design

Rex v. Smith - D marries wealthy women, drafts wills, and all 3x wives were found dead in the tub. Admissible to allow jury to infer a design/plan. **Judge Scrutton’s imaginary card game theory - if someone is found with an ace is pocket 1x maybe accident, but 3x is suspicious


If 404(B) other purpose, does it meet Huddleston (stolen tv case) standard?

-Court does not need to make a preliminary finding that past acts actually occurred so long as there is sufficient evidence by which a jury COULD reasonably find that the conditional fact existed.
- Jury decides whether prior act occurred; court only decides if it is relevant.
Safeguards: (1) 404(b) allows proper purposes; (2) 402 requires relevancy; (3) 403 balances probative v. prejudice; & (4) 105 limiting instruction

character for truth-telling to support inference that witness lied here

  1. Non-Character Based

Contradiction by:
(1) Conflicting evidence (sensory deficiencies);
(2) Past inconsistent statements;
(3) Evidence of bias

  1. Character-Based

- 607 witness credibility may be attacked by any party, including party calling the witness.
(1) 608 Past lies by opinion/rep. of untruthfulness or cross about specific instances w good faith basis
(2) Past convictions

- 609(a) admitted, subject to 403, if crime was punishable by death/imprisonment of 1 year + or if crime elements required proof or admission of dishonesty or false statement

- 609(b) conviction cannot be more than 10 years old from date of conviction or release whichever is later

-- convictions that do not involve dishonesty or false statements are admissible only if (a) punishable by death/imprisonment 1 yr + and (b) pass 403 balancing

-- convictions for crimes of dishonesty or false statements are always admitted – no 403 balancing

  1. Rehabilitation

Once credibility has been attacked it can be rehabilitated in the form of either opinion or reputation testimony, but then the opposing side can use specific instances (with good faith basis) to rebut
*Note – use of extrinsic evidence is barred for conduct evidence, but not bias bc bias is not deemed to be a collateral matter

406 relevant to prove conduct of person/org on a particular occasion conformed w the habit or routine practice

3.19: Estate suing decedent’s doctor who was wrongly prescribing steroids. 8 former patients learned that pills prescribed by same doctor were also steroids. D.C. Circuit reversed (rare) and said evidence shouldn’t have been admitted. Habit evidence should be something that is not volitional – same scenario or stimulus again and again and response is always UNFAILINGLY the same (Davis Ex: you always put your socks on before you put your pants on – you do it so often and in the same way that it is a routine that is not even thought about).

Key focus is “predictive” unlike other propensity evidence, the more predictive the behavior, the more probative. To justify habit evidence a party must show he expects to prove a sufficient number of instances of the conduct in question. *Advisory Co suggests that regular drinking does not qualify as a habit under 406 (some courts allow it though) – some argue the noted suggestion is evidence that the committee meant to extend the category of habit only to relatively innocuous behavior.” There is no clear straight line separating habits from the sort of character-based propensities regulated under 404 and even if we could decide where to draw the line, human behavior rarely conforms to human categorizations.

if character evidence is admisisble, does it meet the rules for proving character?

405 (a) proof may be made by reputation/opinion testimony. On cross, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances. when character evidence is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct

(1) Witness’s opinion - requires that the witness actually know the person about whom he is testifying

My Brother’s Keeper - “Yeah my nephew -that would be his uncle” – establish a firm knowledge of the person
-- D Goal: humanize the client – help the jury relate to him; P Goal: (1) try to break connection bw witness & D (1) length of relationship; (2) knowledge of prior convictions (specific instances w documented support)

(2) Testimony about person’s reputation - only requires that witness has heard about D’s rep in the community; the witness doesn’t need first hand knowledge of his actual character”

(3) Specific instances of past conduct on cross by opinion/reputation when (i) D offered evidence of his good character; or (ii) when a person’s character is an essential element of a charge, claim, or defense (i.e. defamation – rebutting a defense of truth, child custody – prove character/fitness of parent, insanitylacked volitional control, entrapment – D was predisposed to commit the crime, self defense – victim was violent *some jurisdictions allow it as an essential element of the offense; most say it’s not an element but rather a pertinent character trait)

Michelson (1948)Party has the right to cross another party’s character witnesses about past bad acts such as arrests and/or convictions if D opens the door of it it goes to a specific element, of the charge/defense. **Note: It cannot be a fishing expedition. D admits to bribing a federal agent, but claims entrapment. D offers five witnesses to testify to his good reputation. Prosecution allowed to cross and ask if they knew specific acts (D had prior arrest for receiving stolen goods)

3.15: D can arguably be her own character witness. D: If you had to do it over again, would you shoot him? D: I wouldn’t shoot anybody. But if I had to, it would be Mr. Cusick. Cross: Prosecutor: You told the detective you had shot at people before, though, didn’t you? D: Yes. Arguably, “I wouldn’t shoot anybody” is being her own character witness opening the door for cross to go into specific instances to rebut character.

3.16: D claims self-defense for murder; during trial victim friends “threaten” D’s brother. Under 405(a) specific instances aren’t allowed. Issue is D’s reasonable fear – not his character – it may help show fear, but it’s not necessary.

3.18: Expert proffered testimony that the victim’s body contained cocaine, morphine, and alcohol to excessive amounts. It’s an opinion so what’s the problem with admitting it as character evidence? 405(a) allows “Character or a trait of character” – this isn’t really character evidence of decedent. There could be an argument for admitting this evidence – even if we accepted that (which we don’t), we find that it would have been harmless error because there was other evidence, ample evidence to show the fight and show that the victim started the fight.
If proving character of victim, does it meet 412, 413, & 415 limitaitons
propensity Evidence in Sexual Assault Cases

Common Law: “consent” defense made victim’s character an issue, so D could bring up Victim’s sexual propensity

Abbot (1838) Classic Rule – witness could be impeached by proof of general reputation for unchastity. Accuser is commonly the only witness so omitting it would hinder the justice process. It is easier to “infer assent [by] Messalina (Roman empress who conspired against husband), in loose attire, than in the reserved and virtuous Lucretia (innocent woman raped by king; allegedly caused the revolution that overthrew the Roman Republic).” *Notorious passage.

Sibley (1895)The chastity rule discussed in Abbot only applied to women.

Then: State courts struggled with past sexual misconduct evidence under 404 equivalents by stretching the meaning of intent (evidence must support reliable inference that D had same intent in charged occasions), motive (reason that nudges the will and prods the mind to engage in crim activity), and common plan/scheme (pattern/systematic course of conduct if constituent parts of an overall big plan i.e. domestic violence can be blueprinted details for control = stalking, assault all integral to the overall plan)

Now under 412(a) not allowed to prove alleged victim (1) engaged in other sexual behavior or (2) has a sexual predisposition. Except under 412(b)(1) in a criminal case, specific acts to prove (a) another person was the source of semen, injury, or other physial evidence, (b) consent w accused, & (c) evidence that the exclusion of would violate D’s constitutional rights. (2) in a civil case, to prove it is admissible if otherwise admissible under the rules and its probative value substantially outweighs the danger of harm to any victim & of unfair prejudice to any party. evidence of alleged victim’s reputation is admissible only if the alleged victim placed it in controversy. **413, 414, &415 specifically allow proof of D’s sexual propensities in sex offense trials

Guardia (1998) – Dr. charged with sexually abusing patient; gov. sought to offer testimony of 4 others w similar abuse claims. Under 403, it was excluded bc risk of jury confusion substantially outweighed probative value. 413 essentially supersedes 404(b) allowing evidence of prior conduct to demonstrate D’s propensity to commit the charged offense, but 403 balancing test still applies to 413. *High lower court deference; case could have come out the other way if lower court said so.

Mound (1999) – D argued 413 violates 5A’s due process bc it authorizes the jury to overvalue character evidence & convict D for who he is, rather than for what he did. Since 413 must survive a 403-balancing test it is not unfair and does not violate 5A.
Dissent - 413 runs counter to the centuries of legal tradition & violates fundamental conceptions of justice.
**Harriett R. Galbin, Shielding Rape Victims: A Proposal (1986) – 412 goes too far and is too broad, the legislators did not clearly understand the underlying evidentiary concepts; A 404(b) amendment would have been better - allowing this evidence for only certain purposes:
In rape prosecution, evidence of consensual sexual conduct w persons other than the accused is not admissible to show victim was more likely to consent to sex. Evidence of consensual sexual conduct however may be admissible for other purposes i.e. identity, opportunity, common plan or scheme, and for other purposes not specifically mentioned in the rule
In a rape prosecution, evidence that victim engaged in consensual sexual conduct is not admissible to support the inference that the person is less worthy of belief as a witness

412 in Force

        1. 412(b)(1)(B) Past Sexual Behavior with the Accused (Jovanovic) – D and victim’s first date ended in a sadomasochistic assault. D claims consent. Emails from victim saying she was into sadomasochism were excluded. Appeals court held emails were sexual behavior evidence, admissible under 412(b)(1)(B). **Still subject to 403.

          **Advisory Committee: Past sexual behavior connotes all activities that involve actual physical conduct.

        2. 412(b)(1)(A) Explaining the Source of Physical Evidence (5.2) – victim testified that D attacker had never been in her apt before that night. D says he had been and before it was consensual sex. Evidence of D’s fingerprints in the bedroom. His claim is he wasn’t there during time in question, so consent under (b)(1)(B) doesn’t apply and (b)(1)(A) doesn’t apply bc he’s not pointing to anyone else to say someone else is the source – he’s saying that’s my fingerprint, but I didn’t leave them that night. *His explanation was inadmissible bc it did not meet any of the 412 exceptions.

        3. Past Allegedly False Accusations (Smith) – 412 hearing not necessary for impeachment evidence. D accused of molesting a young girl; trial rested on her credibility. Evidence of girl’s prior false allegations of molestation should have been allowed. *Note this evidence is still subject to 403, 404, 607, 608, and 613.

- 5.3 Smith remanded: need credible evidence to show that prior allegations did happen. Under 608(b) D’s use of the evidence requires the victim or a victim’s character witness to testify, but if either denies it then D has to accept it, no extrinsic proof is allowed. Low standard = reasonable probability/relevance (Huddleston- trial ct simply examines all the evidence and decides whether the jury could reasonably find the conditional fact). All that’s required is a reasonable amount of info for the jury to believe conditional facts. And relevant evidence may be excluded under 403

- 5.4 Alvery – victim accepted an invitation to D’s home; then he allegedly raped her. D sought to enter evidence that victim has claimed raped before after engaging in consensual sex. *Not like Smith case where D was questioning about a past retracted accusation, here D is saying prior sexual behavior was consensual, violates 412.

        1. Style Uses of Evidence of Past Sexual Behavior
          Proof of Bias - Exposure of a motive to testify is a proper & important function of the protected right of cross

Olden v. Kentucky (1988) D dropped victim at man’s house and she claims rape. D argues his 6A right to confrontation was violated bc D’s evidence that victim & man were in relationship was excluded and it would have showed a motive for lying (not that she was lying, but she had the motive to). *Like Prof Gowan’s 404(b) amendment

-- Note: Protects D’s 6A right to cross an accuser to show witness bias bc bias-based impeachment suggests a witness has a motive to lie in this case, not that he has a bad character for truthfulness.

5.5 Bryant D wants to admit (1) Sex acts to show knowledge, intent, common plan with respect to consenting. Like 404(b), but 412 governs, so barred. (2) Sex with 2 prosecution witnesses. Could be motive (why she came up with the story) or bias (but a woman is likely going to know the people she broke down to about the rape); & (3) Sex after the alleged rape – admissible to rebut a contention by prosecutors that the woman was diagnosed with post-traumatic stress disorder (assumes prosecutors are going to offer PSD - premature)

Narrative Integrity (Res Gestae)

Stephens v. Miller (1994) – Victim said D entered her trailer and made unwanted sexual advances. D became angry and aggressive. D said it was consensual sex, then he commented to victim about her sexual history with another man, (“don’t you like it doggy style? Tim said you do”), which made her angry. Lower court allowed D to say he made a comment that enraged victim, but did not allow him to state the exact comment about the victim’s sexual past.
-- Remember Old Chief (citing Parr v. U.S. (5th circuit); cert. denied (1958)) that explained the reason for the rule is to permit a party to give the jury a picture of the events relied upon. To substitute a naked admission might rob the evidence of its fair and legitimate weight, which reflects the fact that making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness.
Holding: nothing in the constitution prohibited the exclusion of the testimony here (1) The Rape Shield intended to prevent this exact kind of generalized inquiry into the victim’s past sexual conduct. Thus, to accept D’s res gestae argument would make the rape shield useless. Also, there is nothing to support D’s res gestae argument as a constitutional violation. In other circumstances (where D wasn’t so obviously guilty) the argument might be made that if D actually said the comment it might paint a picture and make his testimony more believable.

Dissent: the exclusion of the evidence has interfered with D’s right to present his defense. The plausibility of his defense turned on whether the jury could be persuaded that something he had said could have angered her enough for her to make up the rape story

Prof Galbin’s 404(b) amendment: (Never adopted) – Probably admissible – under one of the specific 404(b) purposes; not to show her sexual character or that she acted in conformity with it, but rather to fill in the blanks.

Witness Competency


General Rule of Competency - Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
Everystatute is very broad; except as otherwise provided – but exceptions are very few)


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. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.


Oath or Affirmation - Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.


Religious Beliefs or Opinions - Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

Judges determine testimonial competence: whether (1) witness has personal knowledge of the matters of testimony; and whether (2) the witness declares, by oath or affirmation, that she will testify truthfully
No mental requirements

    1. Common Law Witnesses Competency – lots of competency rules dictating who could and could not testify: excluded party’s spouses, persons with a financial interest in the case, convicted felons, and atheists. Purpose: to keep from the stand anyone whose temptation or inclination to lie was greater than the norm.

    2. Witness Competency Issues Rare & most old witness competency laws are gone
      Arises most commonly with young children - courts can exclude under 403 if probative value is weak bc child cannot tell truth from falsehood. Factors that determine a child’s competency vary from jurisdiction to jurisdiction, but generally include: perception, accuracy; & ability to communicate
       Some states have an age cut-off, but most have done away with this

Swan (1990) – Court found the 3 year old was not competent to testify – she didn’t know her dress color, the day, said she had been in court 40x when she had never been there before. *Alabama, Connecticut, and Utah all declare child victims of physical or sexual abuse to be competent as a matter of law – no hearing or objections

GA Appeals Court rev’d child molestation conviction bc 8 year old victim improperly testified. Prosecutor: Do you know when your birthday is? No. Do you go to school? Yes. Where? I don’t know. Court: What does court do? Help people. P – Is it bad to tell a story? Yes. D: Do you know what happens when you don’t tell the truth? No. Do you ever make up games to play? No. Do you ever talk to your dolls? Yes. If I told you I could fly without an airplane would you believe me? Yeah.

Davis: results differ, but more and more, particularly in sex abuse cases, children are able to testify –questions involving competency today, more often than not will involve children.
In Practice: witnesses must meet the ORR qualifications - ability to Observe (were the events perceived?), Remember (is memory intact or hazy?), and Relate (communicate events intelligibly)
Hearsay 801 out-of-court oral or written assertion or non verbal conduct offered to prove the truth of the matter asserted; usually barred bc of: (1) jury’s need to observe speaker’s demeanor; (2) D’s 6A right to confront accuser & cross the witness

  1. ClipWitness says there were screams by the lake, but he didn’t hear them. Some tourists heard them & told him the next day. Problem: it involves the credibility, not necessarily of the witness testifying, but rather, of this out of court declarant

  1. What is the evidence being offered to prove?

          1. not to prove the truth of the matter

(1) Words Offered to Prove Effect on the Listener: present witness testifying about effect & she is available to test/observe
Self Defense - testimony to show someone had reason to fear D at the time of the attack is not hearsay

- Adam’s Rib Clip Woman killed husband testifying that he told her, “bite your tongue fatso. I don’t want to have to shake your head.” It doesn’t depend on the truth, but her perception of it.

- 7.6 Getz – D charged with felony theft after illegally selling horses. She believed she was selling horses for the owner. Not the truth of owner’s words, but her belief.

(2) Legally Operative Words (Verbal Acts) - legal right or duty triggered or offense caused i.e. “I do” – at altar is a marriage; “I’ll kill you” is a threat, & “he’s a thief” can be slander.

- 7.8 White (6th Cir. 2004) – D convicted of making a false dec. form. White wanted his friend to testify that D told him “I have more items to declare.” It should have been admitted as a legally operative statement.

(3) Inconsistent Statements Offered to Impeach - simply offered to show inconsistency between two statements at diff times

(4) Non-assertive words – i.e. Ouch

(5) Assertions offered as circumstantial proof of knowledge

      1. to prove the truth of the matter?

Writings can be hearsay even though less of a perception/memory problem, but person is still not present for demeanor or cross,

Non-verbal conduct (gestures) can be hearsay – Testifies that she asked D about replacing his bike and he rubbed his thumb and finger together (money).

Declarant’s own statements can be hearsay, especially if not under oath, demeanor is not observed, & not subject to cross. But it can still fall under an exception

Courts split on machines as hearsay: Nurse drew blood & computer analyzed it. Computer printout, but medical staff performed test and input info. *States often rule machines must meet certain standards.
United States v. White - 4th Circuit said not hearsay bc “raw data is not statements of operators, but rather the machines
Bullcoming v. New Mexico (2011) – Sp Ct held admission of lab report w no operator testimony was a violation of 6A right of confrontation. *P. 579 rulebook Bullcoming case - If witness testifies to what someone else said out of court - violates 6A

  1. If to prove the truth of the matter, Did declarant assert/communicate the fact?2
    - Wright v. Tatham (1838): letter asked D to handle something for Parish. Non-verbal act not hearsay bc letter writer did not intend to say “this man is sane” it was just his thought at the time that the man was competent to handle the proposed matter.

  • Case hypo almost as famous as the case: Testimony that captain examined the boat & embarked on it with his family is circumstantial, not hearsay and it shows his belief that it was seaworthy, not that he was asserting it was seaworthy

  • Contrasted with an event when the chairman of the atomic energy commission took his family to the site of a recent nuclear test accident is different because he is intended this action to assert the sites safe nature.

  1. A Few Good Men ClipOut-of-court inactions with no intent to be an assertion are non-hearsay. Cruise – victim wasn’t being transferred bc no phone calls made & none of his bags were packed. Out-of-court inactions are non-hearsay

  2. Miracle on 34th Street – letters addressed to Santa. Non-hearsay bc post office actions were not intended as an assertion.

  3. During mad cow alarm, press report that Agriculture Minister ate a hamburger & said “this is delicious” is an assertion because he’s trying to say that the beef is safe to eat – hearsay

  4. Scott Peterson Trial, Prosecutor argued D’s failure to tell wife about boat. Testimony of wife’s sister & friend that she never mentioned it. This is silence, failure to tell them wasn’t a communicated assertions, so non-hearsay

  5. Hotel Crack Cocaine Case. Government offered documents to show D had knowledge of how to make these drugs. Only trying to prove D’s knowledge & knowledge alone is not hearsay

  6. After being shot, D fired gun into alley, testimony of that is probably not hearsay. Shooting into alley to make a mark and id person who shot him could be an assertion, but is one thinking that clearly after being shot; not likely that he intended to communicate anything here, more of a reaction

  7. Police on premises of suspected gambling site, picked up phone, speaker tried to place a bet. Caller had no intent to id place; officer testifying about call and we can test his credibility.

  8. IDs D after being fatally shot “Why did you stab me?” –could be ID exception; if said loud/angrily it may have been an assertion

  9. After being arrested for cashing a stolen check, another guy walks by and D whispers, “I didn’t tell them anything about you.” Whispering might not have been intended as an assertion

  10. D on trial charged with poisoning her working-class ex-lover. She claimed he framed her. Victim’s diary showed she met with him and he was not feeling well after. He’s not an acclaimed poet intending for others to read/publish his diary. It might depend on where he kept the diary. Unless something indicates he really intended to communicate something, it would not be hearsay

  1. If it is an assertion, does it meet one of the Hearsay exceptions?

    1. Past Statements of Witnesses: 801(d)(1)

    1. (a) Inconsistent Statements Substantively

    1. (b) Past Consistent Statements

    1. (c) Statements of Identification

    1. & 613 Inconsistent Statements to Impeach

    1. Admissions by Party-Opponents: Rule 801(d)(2)

    1. (a) Party’s Own Statement

    1. (B) Adoptive Admissions

    1. (C) & (D) Statements of Agents

    1. (E) Co-Conspirator’s Statements

    1. Availability of Declarant Immaterial: 803

    1. (1) Present Sense Impressions &
      (2) Excited Utterances

    1. (3) Statements of Then-Existing Condition

    1. (4) Statements for Medical Diagnosis

    1. (5) Refreshing Memory & Recorded Recollections

    1. (6) Business records

    1. (8) Public Records

    1. (10) Absence of public records

    1. when the declarant is unavailable: 804(b)

    1. (1) Past Testimony

    1. (3) Statements Against Interest

    1. (2) Dying Declarations

    1. (6) Forfeiture by Wrongdoing

    1. Residual Exception: 807

        1. Past Statements of Witnesses: Clip - cab driver drove robbery victim home from crime, testifies on direct her bf paid him, but on cross, D attempts to impeach bc he previously told police she paid his fare. If under 613, declarant must testify & lawyer must have good faith belief of past statement, it can’t be used as evidence of the truth bc no demeanor observation or cross; BUT person is now under oath, subject to cross & observation. *If under 801(d)(1)(A) as substantive evidence, declarant must testify & be subject to cross; statement must be inconsistent and given under oath at a prior proceeding or deposition. *801(d)(1)(A) has more stringent standards

              1. 613: Inconsistent Statements Offered to Impeach

  1. (A) whether written or not, it need only be shown or disclosed to witness upon request. *Cross-examiner may accept denial or introduce extrinsic evidence *Note 608 doesn’t allow this. (B) extrinsic evidence is not admissible unless witness is afforded opportunity to explain or deny it & opposite party is afforded an opportunity to interrogate

  1. Barrett (1976) – museum stamp theft; jail snitch testifies. 613(b) - court takes critical evidence very seriously and defense should be able to put on impeachment evidence under 613(b) as part of his 6A right even if statement was vague, bc jury could have inferred it was contradictory and that there was reasonable doubt,

  2. 7.17 – W told police D fired fatal shot. On direct W testifies she was not there & denies making previous statement. Gov. calls officer to testify about it. Officer’s testimony cannot be used substantively, only allowed to show prior inconsistency.

  3. Ince (1994) – Unsworn statement by D’s friend that D admitted firing the gun. At trial, she couldn’t remember it. Officer then testified to what she had told him, arguing it was impeachment. A prior inconsistent statement should not be introduced to impeach one’ own witness (especially if it contains an alleged confession), thus circumventing hearsay exclusion. If original testimony was not damaged & testimony is both prejudicial and lacking probative value (fails 403), it’s NOT permissible for prosecutor to call another witness as a strategy

        1. 801(d)(1)(A): Inconsistent Statements Offered Substantively

  1. A statement is not hearsay if declarant testifies at the trial or hearing subject to cross concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition

  2. - If prior statement was made under oath at a proceeding (like a grand jury hearing), it may be introduced substantively

  3. - If witness says she ‘doesn’t remember’ previous statement, its not technically inconsistent, but the judge may rule it is in a DV case

  1. Victim id’d person involved at Grand Jury hearing and said he hit her, but at trial she said she ran into a door. Prosecutor can offer the previous statement into evidence bc it was an inconsistent statement was given under oath “subject to penalties of perjury” 801(d)(1)(A). *Rulebook p. 220 – conference report – no option to cross in front of the grand jury, but the report doesn’t say anything about cross.

  2. Witness claiming no memory isn’t really inconsistent. *Difficult to know if memory loss is true/false; if subject to cross it could go either way.

        1. 801(d)(1)(B): Past Consistent Statements - statement by witness out of court before testimony that reinforces or supports testimony

  1. A statement is not hearsay if declarant testifies, subjected to cross, statement is consistent with testimony, & is offered to REBUT express or implied charge against declarant of recent fabrication/improper influence/motive

  2. - Prior statement need not be under oath & it may be introduced substantively if impeachment efforts suggest testimony was a recently created lie or was influenced by improper motives (only to rebut specified attacks on the witness’s in-court testimony)

          • Anatomy of a Murder Clip – W testifies that in jail D said “I fooled everyone.” Party admission. On cross, asked how he came to testify - implying deal w D.A. Shows bias/motive. But if prosecutor wants W’s mom to reaffirm W, it would only be allowed if their convo was before alleged motive would have arisen. *Anyone in jail likely has a motive to please the D.A. from the moment they are in there

          • Tome (1995) – Prior consistent statement only introduced if proponent shows (1) W’s testimony has been attacked as recently fabricated or influenced by motive to tell a lie and (2) W made prior statement before time of alleged fabrication or motive to lie arose. Rationale: statements that occurred before the alleged fabrication are more trustworthy. Mother was not granted her request for sole custody. Later she contacted authorities that her daughter said dad sexually abused her. D argued mom lied to maintain custody. Child testified, but would not answer Q’s on cross. Gov. produced 6 witnesses to reaffirm child’s allegations. Allowed under 801(d)(1)(B) bc they rebutted implicit charges that child’s testimony was motivated by a desire to live with her mother. “A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive.”

        1. 801(d)(1)(C): Statements of Identification

  1. Not hearsay if declarant testifies & is subject to cross concerning statement, & statement is an ID of a person made after PERCEIVING the person

  2. - Perceived = “aware of”; doesn’t require that the witness actually SAW the person
    - Rationale
    : ID’s made prior to trials are likely to be more accurate than ID’s during testimony

          • Clip – Woman ids mugger in lineup. Even if she didn’t remember, it wouldn’t affect testimony bc an ID made shortly after attack is more reliable than time of testimony bc memory fades. Plus peoples’ appearances might change (i.e. lose weight or grow a beard).

          • Owens (1988) - Prison guard beaten up; ID’d attacker at the hospital, but lost recollection of attack. Victim was allowed to testify to his hospital ID. A witness in a criminal trial may testify about an earlier ID even if he can no longer testify as to the basis of that ID. The Confrontation Clause only requires the opportunity for effective cross, not whatever sort of cross D might want. Here, D could have attacked victim on the basis of his forgetfulness. “Subject to cross-examination” does not on its face require more. *Note: when witness is available for cross, ct is more likely to admit hearsay, BUT when witness can’t remember, he’s not really subject to EFFECTIVE cross.

          • 7.21 –abuse claims made to nurse, can she testify about the victim’s statements? Often identification is like the clip above, a line up, but it can be a verbal ID or, as here, a comment identifying abuser indirectly, “kids dad came over drunk and hit me with an open hand.”

        1. 801(d)(2) Admissions by Party-Opponents

          1. 801(d)(2)(a)

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