Daryl Crouse, CI, CT

My Availability

Daryl — Sun, 19 Feb 2012 01:32:07 +0000

Courtroom Dialogues

Daryl — Sat, 18 Feb 2012 16:38:46 +0000

Apple Blocks Access for People with Disabilities

Daryl — Mon, 29 Aug 2011 12:57:58 +0000

I just discovered that Apple is now preventing iPad 2 users from downgrading from 4.3.5 to 4.3.3. Obviously, Apple is trying to prevent people from jailbreaking their iPad 2. The one thing Apple is forgetting; without the ability to downgrade the device to 4.3.3 so a user can choose to jailbreak (perfectly legal to do so) the user cannot use Facetime over 3G connection. The user is limited to only using Facetime over WiFi. This is very limiting because it prevents a Deaf or Hard of Hearing user from making a phone call to other Facetime users and in some cases to a hearing person through video relay.

Historically, a user was able to control the version of iOS installed on the device. Apple is now acting with impunity and all out monopolistic actions that are having detrimental effects on Deaf users.

Principles of Evidence – Part 3

Daryl — Sun, 07 Aug 2011 16:46:51 +0000

240 HEARSAY EXCEPTIONS Ch. VII As a general matter, the drafters of the Federal Rules thought that statements falling within the Rule 804 exceptions were not as reliable as live testimony, but superior to no evidence at all.
They built in a preference for the declarant’s live testimony.
The secondlevel preference for taking the declarant’s deposition does not apply to the Rule 804(b) exception for former testimony.
A witness’s demeanor is an important factor in the trier’s assessment of the witness’s credibility.80 Rule 804(b)(l) Rule 804(b)(l) creates an exception from the hearsay rule for the following: Former Testimony.
Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
But studies have shown that testimony of a live witness is more useful to the trier of fact than videotaped testimony.
242 HEARSAY EXCEPTIONS Ch. VII Observe that the rule requires only an opportunity and similar motive to develop the witness’s testimony in the first proceedingthus, a party who chooses not to develop adverse testimony may be bound by it in a subsequent proceeding.
If, say, the plaintiff calls W, asks only several questions and, following his opponent’s cross, declines redirect, the rule is satisfied—oo long as the motive for developing the testimony is similar to the motive that the party would have to develop the testimony in the current trial (Trial 2).
The central question is whether the prior testimony of a witness should be admissible against that party on the ground that he was adequately protected by an earlier examination of the witness or by an earlier opportunity to “develop the testimony”" of that witness.
In some civil settings, a different party (from the one against whom the prior testimony is now offered) may have adequately protected the interests of the present party-by developing the witness’s testimony in the same way as the present party would do if the witness were now available.
Although Rule 804(b)(1) does not require similar or identical issues in the first and second proceedings, similarity of issues is still a relevant concern in applying the rule.
The phrase liberalizes Rule 804(b)(l)’s “same-party” requirement that applies in criminal cases.
If the trial judge equates “predecessor in interest” with privity, Bystander’s former testimony is inadmissible against Pate, who is not a successor in interest.
A modem court is likely to rule that because both Pam and Pate had the common objective of showing that the signal malfunctioned, and because this is a common issue in both trials, Bystander’s prior testimony is admissible agajnst Pate.
A court might be persuaded not to admit the testimony if it could be shown that Pam, for whatever reason, did a poor job of developing the witness’s testimony.
Â§7.9 RULE 804 EXCEPTIONS 247 opportwtity to develop the testimony of the now-unavailable witness.
States v. Salerno88 the Court addressed the issue of whether defendants in a criminal trial could introduce against the government the prior grand jury testimony of two (nowunavailable) witnesses, who testified favorably to the defendants at the grand jury proceeding.
The admissibility of the testimony, the Court said, turns upon whether the prosecutor in the grand jury proceedings had a motive to develop the witnesses’ testimony that was similar to the motive that would exist if the witnesses testified at trial.
On remand, the Second Circuit found that under the facts of this particular case, the government’s motives were dissimilar:89 in the grand jury proceeding, the prosecutor’s motive was to secure evidence to indict other defendants.
The respective motives are 88.
The proponent may use other methods to prove the witness’s prior statements.
For example, one who heard the former testimony can take the stand in the present trial and state what the testimony was, i.e., recite what the present witness heard the declarant say.
91 Federal Rule 804(b)(2) The exception to the hearsay rule pertinent to the present discussion appears in Rule 804(b)(2): Statement under belief of impending death.
In a prosecution for homicide or in a civil action or 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 believed to be impendingdeath.
Statements not admissible as dying declarations may often be received under Rule 803(2), the exception for excited utterances.
Another possibility for admitting statements that don’t quite fit Rule 804(b)(2) is found in Rule 807, the “residual exception.”
Statements Against Interest The rule that admits statements against a declarant’s interest is based on the psychological assumption that a person does not make personally disserving statements unless they are true.
Assertions coming 97-Although the Federal Rules do a few states do.
The trial judge is apprehensive that Cassius was lying-Cassius is unlikely to be prosecuted, and may have made the statement to create evidence on Alex’s behalf.
Too, would be a declarant’s statement to investigators that he committed a crime at noon on day 1 in City X, when he is suspected of committing a more serious crime in City Y at that approximate time.
254 HEARSAY EXCEPTIONS Ch. VII Text of Rule 804(b)(3) Federal Rule of Evidence 804(b)(3) provides an exception from the hearsay rule for a statement that qualifies as a-Statement agaillllt interest.
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.
As the pressure mounts, Ellen calls the detective from the Fraud Division who has been investigating the case.
The problem of “mixed” statements has been variously resolved by courts over the years.
Testimonial” under the standard.104 statements like Ellen’s, made to law enforcement and implicating the accused, violate both the hearsay rule under Williamson and the Confrontation Clause under Crawford.
After Crawford, the Supreme Court held that if hearsay is not testimonial, then its admission cannot violate the defendant’s right to confrontation-that is, the Confrontation Clause is only implicated by testimonial hearsay.’05 102.
The statement has a tendency to be disserving, because it implicates both Ellen and the accused as acting in concert to commit a crime.
An entry in (now unavailable) Uncle’s diary that “Niece and Husband called from London to report the birth of their daughter, Alana, 6 pounds, 9 ounces, b. Aug. 2, 1993″ would fall within the exception.
Â§7.9 RULE 804 EXCEPTIONS 259 Forfeiture of a Hearsay Objet:tion Rule 804(b)(6) provides that a party forfeits the right to object to a hearsay statement when the declarant has become unavailable and the party has wrongfully acted, or acquiesced in wrongdoing, that was intended to and did create that unavailability.
The most obvious situation for employing this exception is where a criminal defendant kills a witness, or has him killed, to prevent him from testifying; by engaging in this conduct, the defendant has forfeited the right to object on hearsay grounds to any of the victim’s statements.
Any party who wrongfully acts, or acquiesces in wrongdoing, with the intent to render a declarant unavailable to testify forfeits the right to object to the unavailable declarant’s hearsay statement.
If the defendant kills a declarant simply because he did not like him, or because he was burned in a drug deal by him, then the defendant has not forfeited his right to object to the declarant’s hearsay statement.
Assume a murder case in which the victim has made hearsay statements identifying the accused.
The government argues that the accused has forfeited his hearsay objection because he murdered the victim.
The basic procedure is that the court will hold a hearing ( outside the jury’s presence), and will take evidence on the cause of the declarant’s unavailability.
As to the “more probative” requirement, the judge must decide on the basis of the representations of parties whether other evidence can be procured by reasonable efforts.
Hearsay statements are admissible if one or more of the hearsay dangers are significantly reduced.
There was a need for this evidence, because the passage of time would make it difficult to fmd witnesses to the fire and, even if one or more could be located, their memories would have dimmed.
Although the rule does not require unavailability, it does require that the proffered hearsay evidence be “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.”
The availability (or unavailability) of live testimony is a relevant consideration in the application of Rule 807.
Under the socalled “near miss” construction of Rule 807, the rule is inapplicable if the proffered evidence is addressed by one (or more) of the specific exceptions, but fails to satisfy all of the conditions of admissibility.
One of the reasons for Rule 807 is to provide the courts with some flexibility in applying the hearsay rule; another reason is to afford opportunity for patterns of judicial response that could lead to the formation of another specific exception to the hearsay rule.
If the grand jury declarant is not available to testifY at trial, admission of the testimony would violate the accused’s right to confrontation.
Crawford has served to substantially limit the use of the residual exception as a means of admitting hearsay against the accused.
Federal Rule 805 provides that Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
With multiple hearsay, a hearsay exception or exemption must be found for each level of hearsay.
Rule 805-which refers to an “exception” to the hearsay rul~ould technically be read to be inapplicable to situations in which statements covered by Rule 80l(d) are included within another statement that is hearsay.
But courts have held that the technical difference between Rule 80l(d) “not hearsay” and Rule 803, 804, and 807 “hearsay subject to exception” cannot control the application of Rule 805′s limitation on multiple hearsay.
Nttâ€¢ the mere fact that one level of a multiple level statement qualifies as exempt from the hearsay rule does not excuse the other levels from the Rule 805 requirement that each level satisfy the hearsay rule.
The accused is given adequate constitutional protection because of the way the hearsay rule is administered-unreliable hearsay is rejected.
Ch. VIll HEARSAY & CONFRONTATION CLAUSE 271 Another way to protect the accused’s confrontational right is to develop constitutional standards of trustworthiness (reliability) that evaluate the hearsay exceptions for corresponding indications of trustworthiness.
If an exception had the imprimatur of many years of judicial experience (that is, was “firmly rooted”), the Court would defer to the collective judgments that had determined the hearsay was reliable and hold that the Confrontation Clause was satisfied.
The Confrontation Clause is not offended by the introduction of a witness’s own prior statements, assuming the accused has a fair opportunity to cross-examine the witness at trial.’
The requirement affects the ability of the government to use electronic transmission, or a “one-way” screen in order 3.
A statement admitted under the exemption for certain prior statements of a teoti(ying witness wuuld not ordinarily be constitutionally suspect.
A constitutional violation occurs because A’s earlier confession implicates B in the charged criminal activity and B cannot effectively cross-examine A; and the Court has held that a limiting instruction telling the jury that it is to use the statement only against A and not against B is insufficient to protect B’s right to confrontation—-i!uch “powerfully incriminating” evidence cannot be ignored by lay jurors.
The Court held that if an out-of-court statement is not hearsay given the purpose for which it is offered, then it cannot violate the accused’s right to confrontation.
But the Court in Crawford held that the reliability-based approach was too flimsy and subjective to protect the accused’s right to confrontation as it was understood by the Framers of the Constitution.
The hearsay statements cannot be introduced into evidence agsinst the accused unless, f1rst, the declarant is unavailable at the accused’s trial and, second, the accused had a prior opportunity to cross-examine the declarant.
The requirements apply when, and only when, a declarant’s statements are offered for their truth implicating the hearsay rule.
False alibi statements made by accomplices to the police (although testimonial, they do not violate the defendant’s right to confrontation because they are not offered for their truth).
Forfeiture of the Right to Confrontation In Giles v. California,” the Supreme Court held that an accused may forfeit his constitutional right to confront testimonial hearsay by making the declarant unavailable for trial-but only if the government shows that the defendant engaged in wrongdoing designed to keep the witness from testifying at trial.
The victim’s hearsay statements were admitted against the defendant on the ground that he had forfeited his right to rely on the Confrontation Clause by murdering the victim.
After Giles, the standards for forfeiture of a hearsay exception under Federal Rule 804(b)(6)24 and for forfeiture of the confrontation objection are coterminous.
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.
If a federal court were entertaining one of these civil suits and applying the substantive law of State X, the court must, under Rule 601, apply the “witness competency” rule of State X. because most states have modernized their rules governing the competency of witnesses, there are comparatively few instances in which a witness, competent under the general approach of the Federal Rules, is disabled from testifying because of a specific contrary state rule.
Some states have statutes that may create special rules of competency in suits in which one of the parties (usually the defendant) is deceased and represented by a fiduciary, such as an executor.
Even in states which retain some version of the Dead Man’s statute, there has been widespread reform.
For example, the living party may testify, but his testimony triggers the opponent’s right to introduce the decedent’s hearsay statements pertaining to the event in question.
Another technique is to allow the survivor’s testimony, but require him to produce corroborative evidence before he can gain a favorable judgment.
The scope of the Dead Man’s statute may be restricted.
The rules of impeachment govern the means by which a party tries to weaken or discredit the testimony of adverse witnesses (including hearsay declarants).5 Some of the techniques of impeachment trace their ancestry to rules governing the competency of witnesses.
For example, conviction of a serious crime, once a basis for a potential witness’s incompetence, is now a basis for impeaching a witness’s testimony.
Types of Impeachment The term “impeachment” generally refers to all evidence intended to negate or raise doubts about the reliability of a witness’s testimony, including evidence that calls into question the accuracy of his observation, his recollection, or the fidelity of his account.
A witness’s credibility is also impaired by a showing that the witness has made a prior statement that is inconsistent with her present testimony.
FRE 806 provides that when a declarant’s hearsa;y statement has been admitted under an exception or as statutory nonhoaroay (under Rule 801(d)(2) (C), (D), or (E)), the “credibility of the declarant may be impeached . . . by any evidence which would be admissible …
The hearsay declarant should be subject to the same impeachment as witnesses who do testify.
Although the law of evidence generally disfavors character or “propensity” evidence, there are exceptions,” and impeachment is one of them.
Because the outcome of most trials depends upon which witnesses are believed by the trier of fact, the law of evidence is crafted to provide the trier with ample information pertaining to the credibility of the witnesses whose testimony is admitted.
The Problem of Extrinsic Evidence A recurring issue in impeachment is whether the “impeaching party” is entitled to present “extrinsic” impeaching evidence.
Extrinsic evidence is any evidence other than the testimony of the witness being impeached-in other words, evidence presented by calling other witnesses or introducing documents.
The employer would be providing extrinsic evidence to prove that the bad act occurred and the sole relevance of the evidence is to impugn credibility.
You will discover that some methods of impeachment allow the introduction of extrinsic evidence, while others do not.
It is reliable evidence that a court has determined beyond a reasonable doubt that the principal witness lied to his employer in order to gain unearned compensation.
Impeaching One’s Own Witness At common law, there was a general rule that prohibited a party from impeaching her own witness.
The idea was that by calling a witness to testify, a party “vouched for” her character and credibility.
The court would call the witness, so the rule did not forbid impeachment by either party.
The rule had no application when a party called her adversary.
The rule was suspended if the party calling the witness was genuinely surprised by her unexpected testimony.
The credibility of a witness may be attacked by any party, including the party calling the witness.
7 Generally speaking, Rule 607 clears the way for a party to impeach her own witness by any of the techniques discussed in the next section.
For example, impeaching a witness by evidence of his criminal conviction impugns his character; impeaching him by evidence of his poor eyesight casts doubt on his perception; impeaching him by evidence of his probable bias falls somewhere between.
Conviction of a Crime One method of impeaching a witness is to show that he has been convicted of a crime.
The desired inference is straightforward: a person who has committed a criminal offense is likely—-<:>r at least more likely than one who has not-to give false testimony.
A distinction could be made between ordinary witnesses and an accused who elects to testify.
Â§9.3 TECHNIQUES OF IMPEACHMENT 285 Federal Rule 609 The Federal Rule governing impeachment by evidence of a prior conviction is Rule 609.
Evidence of juvenile adjudications is generally not admissible under this rule.
286 IMPEACHMENT Ch. IX The court may in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of AppeaL The pendency of an appeal therefrom does not render evidence of a conviction inadmissible.
Evidence of the pendency of an appeal is admissible.
Although any witness’s credibility may be attacked by the introduction of his prior conviction, Rule 609 draws a distinction between the accused and any other witness.
Rule 609 discourages the use of “stale” convictions (more than ten years old) and of juvenile adjudications.
Â§9.3 TECHNIQUES OF IMPEACHMENT 287 witness in a criminal or civil trial, the judge must balance the probative value of the prior conviction against the counterweights contained in Rule 403.
Unless the probative force of the prior conviction on the issue of the witness’s truthfulness is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of ._. waste of time …
When the accused is the witness in a criminal trial, the judge may admit the prior conviction only if its “probative value ._. outweighs its prejudicial effect on the accused.”
It is likely that the court will fmd that the probative value of the conviction as to the or.
For convenience, we will use the tenn ”felony” or “felony-grade” to denote this class of serious crimes.
But the legislative history of Rule 609(a)(2) strongly suggests that as used in the rule, “dishonesty” is an elaboration of “false statement,” and that the reference (“dishonesty or false statement”) in 609(a)(2) is to crimes involving deceit, falsification, or untruthfulness.
Had Clyde been on parole for several years without committing any significant offenses, the judge might have been influenced by his interim good behavior.
On the other hand if the accused declines to testify, the Luce Court holds that the accused waives his right to appeal the judge’s in limine ruling.
The idea is that by frankly admitting the prior conviction, the jurors will not judge the defendant as harshly as they would if this evidence were revealed by the prosecutor during impeachment.
While this may be a useful trial tactic, it carries a cost: the defendant waives the right to appeal the judge’s earlier ruling that the prior conviction is admissible, because the defendant himself introduced this evidence.”
We have seen that if her prior conduct led to a criminal conviction, Rule 609 often permits the introduction into evidence of that conviction to impeach her credibility.
The Federal Rule in point is Rule 608(b), with the balancing conducted under Rule 403.
It is not surprising that courts have divided when ruling on the admissibility of various prior bad acts.
Courts resist conducting a mini-trial within a trial by adjudicating the circumstances of some alleged act that has relevance only because it brings into question a witness’s credibility.
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence.
” under Rule 608(b) the trial judge does have considerable discretion to admit or exclude evidence of a prior bad act that bears on credibility.
The Extrinsic Evidence Bar for Bad Act Impeachment Recall that Rule 608(b) forbids extrinsic evidence of prior conduct that relates to the witness’s “character for truthfulness or untruthfulness …. ”
There is usually no issue concerning what constitutes extrinsic evidence: it is evidence other than the witness’s testimony on cross-examination-that is, extrinsic evidence is characterized by the testimony of other witnesses or the introduction of documentary evidence.
As to the latter, merely having a document marked as an exhibit and then asking the witness about it does not constitute the introduction of extrinsic evidence.
Introducing the document as evidence would violate Rule 608(b)’s prohibition against extrinsic evidence.”
The document may be admissible under some other rule of evidence.
The prohibition against extrinsic evidence applies when the sole purpose of showing the witness’s previous conduct is to cast doubt on her truthfulness.
The prior act is an integral part of the crime charged, and so the testimony would be admissible evidence of a substantive fact.
Rule 608(b)’s rule against extrinsic evidence is inapplicable.
The Advisory Committee on the Federal Rules of Evidence recognized this risk of abuse in its 2003 Advisory Committee Note, and stated that the practice was barred by the extrinsic evidence rule.
The evidence of past conduct is used to show that the witness has a character trait that predisposes him to falsify.
Another method by which counsel can establish this same character trait is to offer one or more witnesses who testify that they are familiar with the principal witness and that his character for truthfulness is bad.
Counsel presents “character evidence” through witnesses who know the principal witness and are able to give a personal opinion concerning his character for truthfulness.
In the case of an opinion witness, the foundation consists of the character witness’s testimony that he is personally acquainted with the principal witness, and that this acquaintance has been sufficiently close to permit the character witness to have an informed opinion of the principal witness’s character for truthfulness.
With little or no elaboration, the character witness states the principal witness’s reputation for truthfulness (or “truth and veracity”) is good; or that, in the character witness’s opinion, the principal witness has good character with regard to truthfulness.
Federal Rule 608(a) The governing Federal Rule of Evidence is Rule 608(a) which states,
Note that Rule 608(a) provides that the character witness must testify “in the form of opinion or reputation.”
Every witness who takes the stand is assumed to have a good (or at least acceptable) character for truthfulness-at least, until the witness’s character has been attacked “by opinion or reputation evidence or otherwise.”
For example, the cross-examiner might attack a witness’s character for veracity by introducing evidence showing that he has been convicted of a crime that bears on credibility.
An example of a proper rebuttal under the rule: the opponent might present an opinion witness who testifies that the principal (attacked) witness has a good character for truthfulness.
During the cross-examination of a character witness, the examiner is entitled to test how well-informed the character witness is and, also, to reveal the standard she is using when she portrays the subject’s character.
( the cross-examiner must have conducted an investigation and concluded, in good faith, that the arrest and trial actually occurred.)
” Note that this form of impeachment of character witnesses does not run afoul of the prohibition on introducing specific act evidence in Rule 608(a).
In the present circumstance the specific act is not being offered to prove the character of the principal witness; rather it is offered to impeach the character witness.
Impeachment by Evidence of Bias The term “bias” denotes a variety of mental attitudes-either conscious or unconscious–that may incline a witness to give misleading or false testimony.
The cross-examiner probing the possible bias of a witness does not have to “settle for” or “take” the witness’s answer on cross, but can produce extrinsic evidence through other witnesses or documents.
It is usually unnecessary to lay a foundation for extrinsic evidence by ru-st asking the witness about the sources of his possible bias.
Some federal courts,” do require such a foundation where the evidence showing bias consists of the witness’s prior statement (“I hate that SOB [the defendant] and hope the plaintiff reduces him to poverty”).
The judges requiring that the witness be asked about her prior statement before it is proved by extrinsic evidence do so on the grounds of fairness and expedition: the witness should be afforded an opportunity to explain or deny her prior statement; furthermore, if she frankly admits having made it, extrinsic evidence becomes unnecessary.
The admissibility of information proffered to prove a witness’s bias is governed by Rule 403-the factfinder should receive the information unless its probative value as to bias is substantially outweighed by the risk of prejudice, confusion of the jury, or delay.
The admissibility of evidence of bias for impeachment purposes in the federal courts was strongly affu-med by the Supreme Court in United States v. Abel, 84 decided in 1984.
Reverting to first principles, Justice Rehnquist noted that relevant evidence is admissible unless blocked by an exclusionary rule, and that evidence supporting bias clearly meets the test of relevance.
If evidence of gang membership were offered only to prove Y’s character for untruthfulness, the bar on extrinsic evidence in Rule 608(b) would apply.
But evidence of Y’s membership also discloses his possible bias.
We see again the familiar principle that evidence admissible for one purpose is usually not rendered inadmissible simply because it would be excluded if offered for some other purpose.
The bar on extrinsic evidence imposed by Rule 608(b) applies only if the bad act is offered for a single purpose-to attack the witness’s character for truthfulness.
Its impeaching value is obvious: unless the witness has a convincing explanation as to why he gave an earlier contradictory account, the force of his trial testimony is considerably weakened.
Suppose a witness testifies that the car in question was black; previously she has said that the car was white.
The sole purpose of the evidence is to show that the witness’s testimony 37.
There are other prior statements by a witness that are exempted from the hearsa,y rule.
Extrinsic Evidence of a Prior Inconsistent Statement There is general agreement that counsel may cross-examine a witness about a prior inconsistent statement even if it appears incidental to the substantive facts of the case (e.g., a discrepancy about what the witness said he was eating at the time he saw the crime).
The theory in allowing this inquiry is that if the witness has made an inconsistent statement even about comparatively unimportant topics to which she testified, she may have been inaccurate in her account of the central topics.
Note that the extrinsic evidence bar of Rule 608(b) is not applicable because the prior inconsistent statement is not being offered to prove the witness’s character for untruthfulnessit’s offered to impair the credibility of the witness’s trial testimony on the ground that he has been inconsistent in his account.
But the inapplicability of Rule 608(b) does not mean that extrinsic evidence of every prior inconsistent statement will be admitted, because proving the statement raises the prospect of confusing the jury and delaying the proceedings.
The judge must apply Rule 403 and determine whether the probative value of the proffered extrinsic evidence (its bearing on the witness’s credibility) is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation or cumulative evidence. ”
This would mean that if the witness had been inconsistent about the color of the teller’s dress, this inconsistency could be raised on cross-examination, but it could not be proved by extrinsic evidence.
The prohibition against extrinsic evidence should be applied flexibly under Rule 403.
Opportunity to Explain or Deny the Inconsistent Statement Under Federal Rule 613, a witness who is impeached by extrinsic evidence of her prior inconsistent statement must ordinarily be afforded “an opportunity to explain or deny it …. ”
Rule 613(b)41 provides: Extrinsic Evidence of Prior Inconsistent Statement of Witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.
Common law judges required that a witness be asked about a prior inconsistent statement prior to the introduction of extrinsic evidence offered to prove the content of the statement.
The cross-examiner had to lay a foundation by identifying the prior statement with sufficient detail (e.g., time, place, person spoken to) to allow the witness to explain, deny, or qualify her prior remark.
Rule 613(a) abolishes an ancient common law rule (“Rule in Queen Caroline’s Case”) that required a cross-examiner to show a written inconsistent statement to the witneBS before she could be questioned about it.
Some federal appellate courts have construed Rule 611 (judges’ control over testimony) broadly enough to allow a trial judge, in her discretion, to require that a witness be asked about his prior inconsistency before he is impeached by extrinsic evidence.
For example, suppose the witness completes his testimony, leaves the court’s jurisdiction, and thereafter COWlsol discovers that the witness has made a prior inconsistent statement.
“contradiction” is employed by the cross-examiner who, unable to get the witness to modify her testimony, attempts to impeach her by the introduction of extrinsic evidence that contradicts that testimony.
But the courts have generally held that to receive evidence of contradiction on tangential portions of a witness’s testimony exacts too great a price in distraction and time consumption.
The admissibility of extrinsic evidence when offered solely for contradiction is subject to the balancing test of Rule 403.
Although the accused has the right to introduce evidence that his character is inconsistent with the crime charged, 47 it is doubtful that devotion to and support of his wife and child has probative value to show that he is unlikely to have committed burglary.
The prosecutor bad two grounds for objecting to the mother’s direct testimony-which, let us assume, he failed to assert.
The prosecutor also has two possibilities for neutralizing the mother’s testimony: cross-examination and the introduction of extrinsic evidence.
He cannot introduce extrinsic evidence to establish that the event he asks about actually occurred.”
A strict application of the traditional evidentiary rules arguably forbids the extrinsic evidence provided by Herbert’s ex-wife.
A trial judge should decide the admissibility of extrinsic evidence on a socalled “collateral” point by applying Rule 403.
Thet is, althoogh counsel has no evidence that the witness was under the influence of an intoxicating substance at the time of the event (or at trial), she does have evidence of the witneBS’s general addiction.
The general practice is to exclude evidence of addiction.
The question before the court is whether a witness may be impeached by existing evidence of a mental illness that could affect his credibility.
As this form of impeachment is usually timeconsuming (and embarrassing to the witness), courts (applying Rule 403) permit it sparingly.
Three considerations are particularly influential to the Rule 403 analysis: (1) the nexus, according to medical authorities, between the alleged mental condition and testimonial accuracy; (2) the importance of the witness’s testimony; (3) the time involved in receiving the psychiatric evidence.
Impeaching a Hearsay Declarant We have seen that the hearsay rule applies only to statements that are proffered to prove the truth of the assertions contained within them.
Federal Rule of Evidence 80652 allows the credibility of a hearsay declarant to be attacked, as a general rule, by the same impeachment techniques that are available to discredit a testifying witness.
When a hearsay statement, or a statemsnt defined in Rule 80l(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.
Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.
lf the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.”
The risk of abuse is apparentthere is no good reason to call a witness solely to impeach him.
If the laWYer knows the witness will give unfavorable testimony, then his reason for calling the witness must be to reveal the latter’s prior inconsistent statement.
An example is where the declarant made the prior inconsistent statement under oath at a proceeding, in which case the statement would be admissible not only for impeachment, but also to prove the facts related in the statement, under Rule 801(d)(l)(A).
The assumption is that most witnesses are conscientious and honest, so there is no reason to prolong the trial by receiving evidence pertaining to credibility when truthfulness has not been questioned.
When the attacking party impeaches by evidence showing an untruthful character, the party supporting the witness is entitled to respond with evidence designed to rehabilitate the witness’s character for truthfulness.
312 IMPEACHMENT Ch. IX example, by evidence of a sensory defect-or memory, he is not assailing the witness’s character, and there is nothing that will really rebut the evidence of the sensory impairment.
The trial judge must decide if the tenor of the impeaching evidence strikes at the witness’s character for truthfulness.
The witness may, for example, refute the impeaching evidence, recharacterize it, or offer a benign explanation.
Note also that the judge was correct in receiving extrinsic evidence (Clack’s testimony).
Because Passerby’s testimony addresses a central point-the identity of the robber–extrinsic evidence of the inconsistent statement should be admissible under Rule 403.
Counsel may attempt to negate the impeaching evidence during redirect examination orunless the impeaching evidence is forbidden because it pertains to a minor point-by producing extrinsic evidence.
If the rule applies, the prior statement is also admitted for its truth.
314 IMPEACHMENT Ch. IX witness is impeached by evidence that he was intoxicated at the time he observed the event in question, supporting counsel can offer evidence that the witness was sober.
If the witness is impeached by opinion evidence that his character for truthfulness is bad, supporting counsel can offer an opinion witness to testify to the principal witness’s good character for truthfulness.
Supporting counsel might respond by producing evidence that the witness currently has a good reputation for truthfulness.
If, for example, impeachment is by evidence of bad reputation for truthfulness, rebuttal evidence that shows the witness has made prior statements consistent with her testimony usually has little or no probative force.
A similar result can be expected when the witness is impeached with evidence of bias, and supporting counsel seeks to accredit the witness with evidence of prior consistent statements.
Â§ 10.1 Rationale and Characteristics As we have seen, the law of evidence generally seeks accuracy in factfinding by receiving relevant evidence thought to be reliable, while rejecting evidence deemed untrustworthy.
Recall that some of the specific evidentiary rules of relevance, such as those that prohibit evidence of post-accident remedial measures or offers of settlement, 1 are based on social policy concerns.
Relevant evidence is rejected on the ground that an extrinsic policy is more important than the factfinder’s consideration of the excluded evidence.
Evidence that reveals a privileged communication bears a kinship to these specific relevance rules, in that extrinsic policies-rather than the law’s search for truth-dictate the rejection of probative evidence.
Such evidence might relied upon to create the evidence.
Â§ 10.2 FEDERAL RULES OF EVIDENCE 317 if the trial judge erroneously upholds a claim of privilege and excludes evidence that is not privileged, the disadvantaged party can object without regard to the identity of the holder.
Evidence In the 1970′s when the proposed Federal Rules of Evidence were considered and amended in Congress, there was widespread disagreement about what privileges should be recognized and what should be their proper scope.
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 privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with state law.
Under federal law, privileges are determined by the case law as it existed when the Federal Rules were enacted, and as it has subsequently developed under federal common law.
Federal Rule 501 directs that in civil cases the state law of privileges applies to the trial of claims and defenses based on state law.
If a plaintiff from Virginja sues a defendant from Delaware in a federal court in connection with an automobile collision that occurred in Virginja, the substantive law of Virginia would apply.
Where one or the other law of privilege must apply to both claims, federal courts generally apply federal privilege law; a 4.
Â§ 10.3 THE ATI’ORNEY-CLIENT PRIVILEGE 319 contrary rule would mean that the federal court was excessively deferring to state law, by applying the state law of privilege to a federal claim.
While the development of the attorney~lient privilege generally proceeds by case law, courts have been guided by proposed Federal Rule 503.
Even though neither the rule nor the other proposed privilege rules were adopted when Congress enacted the Federal Rules of Evidence in 1975, Congress made it clear that its decision to allow the law of privilege to evolve by judicial decision was not a disapproval of any of the proposed enumerated privileges.’
The following textual materials should be viewed as representing the position of most courts and of most federal courts.
The partners suggest that their identity as potential buyers remain secret.
Near the conclusion of this initial consultation, the four participants discuss fee arrangements, the advantages and disadvantages of changing from a dental partnership to a professional or limited liability corporation, various ways in which the contemplated ac
The courts have held that if the dominant intent of the client is to seek legal advice, the privilege is 8.
The privilege probably attaches generally to the communications in Illustration (1), and it attaches to some of them, such as the terms of the contract of sale and the possible legal restructuring of Cusp.’s business.
Although the attorney-client privilege was initially formulated to protect only the client’s confJ.dential communications, modern courts recognize that the privilege also applies to the attorney’s confidential communications to the client.
Considerations of both practicality and preserving confidentially have prompted courts to apply the privilege to the confidential communications of both client and attorney.
They return to Todd and Sheila and engage them “to handle the whole transaction.”
Both men undergo a thorough physical conducted by a Dr. Brooke.
The presence of third parties-the hygienists and assistant-nullifies the privilege.
The attorney-client privilege is inapplicable because there is no reasonable expectation of confidentiality.
Protection of a client’s identity is justified, as when a whistleblower seeks legal advice in connection with revealing wrongdoing or when revealing the client’s name would disclose the general content of a confidential communication.â€¢â€¢ Illustration (2)(g) appears to be far afield from the concerns underlying the attorney-client privilege.
The problem is one of drawing a line that sensibly balances the corporation’s need for an attorney-client privilege and the opponent’s need for fair access to evidence generated within the corporate structure.
From a functional standpoint, the rigidity of the control-group test can have a distorting effect on the choice of corporate spokespersons.
(Note that the parties can contract in their common interest arrangement either to bind all parties or to allow parties to waive the protection as to their own communications-but the default rule is that all parties are bound and the privilege is retained.)
It is not surprising that courts protect the oonfidential communications of separately represented parties who pursue a common legal objective.
Communications about p(]1jt crimes are shielded to allow lawYers and clients to communicate freely and plan legitimate defenses.
Assume that the corporation had previously hired a law firm to conduct an internal investigation, and the law firm prepared a report.
Selective waiver is not necessary to encourage cooperation (except, perhaps, for corporations at the margin, but the consequence of establishing selective waiver would be that all corporations would be protected, even those who would cooperate anyway.)
A mistaken disclosure in discovery will never result in a subject matter waiver.
While a party cannot be careless, it need not undertake herculean efforts to protect against mistaken disclosures in discovery.
The privilege does not protect communications that pertain to a past or planned crime against immediate family members, such as a spouse or child.
If both are holders as to every confidential communication between them, both must waive before the protection of the privilege is lifted.37 Â§ 10.5 The Spousal Testimonial or Incapacity Privilege The second privilege protecting the marital relationship is broader than the privilege protecting confidential communications.
In Trammel, the Court overturned a sizeable body of federal precedent” and adopted the rule that the witness-spouse is the sole holder of the privilege.”
Some state courts adhere to different views and hold that the accused is the holder or, alternatively, that both spouses are holders.
In the jurisdictions, Anne may testifY against Henry over his objection.
The joint participant exception (recognized by some courts) would not be applicable because Anne was not a participant in Henry’s illegal activity.
In the wake of Jaffee, some courts have recognized a 41dangerous patient” exception.
But as we have seen, federal courts apply state privilege law to claims or defenses based on state law.”
An examination to secure life insurance, a court-ordered examination, and an examination solely for the purpose of litigation are typically outside the boundaries of the privilege.
If one has been acquitted (or already convicted)58 of the crime that is the subject of the official inquiry, the privilege does not attach.
When only use immunity is granted, the government might be able to successfully prosecute the witness by us
A corporate officer or employee who is subpoenaed to turn over corporate records cannot decline to do so on the ground that the records would incriminate him.
The Supreme Court recognized the potential unfairness to the individual and held in Braswell v. United States, 487 U.S. 99 (1988), that because the agent must produce the records for the corporation that has no privilege, no use of the individual’s act of production m83′ be made against the individual.
Unless the act of turning them over to the authorities-which is compelled—ronstitutes a communicative act, the privilege against selfincrimination is inapplicable.
The trial judge has made a factual determination, based upon independent evidence, that the government already possessed particularized knowledge of the existence, possession, and general content of the reports sought.
The privilege against self-incrimination would attach and the government would not be able to use the defendant’s act of production against him.
One can draw the infereru:e that bad the government’s proof satisfied the trial judge, the compelled production ID83′ not have offended the Fifth Amendment’s self-incrimination privilege.
Suppose a federal prosecutor grants immunity to a witness who claims that (without immunity) his answer would be incriminating under the law of a state.
A similar pattern emerges when a state prosecutor grants immunity to a witness on the ground that his response would be incriminating under federal law.
Grants of immunity within the United States must be respected by other governments within the United States.
An immunized individual can be forced to testify even if there is a risk of foreign prosecution—and if he does not testify, he can be imprisoned for contempt.
If the privilege in question does attach, it is necessary to determine its duration.
1 In an effort to confine inference-drawing to the jury, common law judges unsuccessfully sought to distinguish “opinion” from “fact” and to enforce a rule that, with some exceptions, confined lay witnesses to “facts.
We might compare a statement that “he walked slowly and unsteadily, stooping so low that his long white hair almost touched the top of his cane,” with a less specific one that “he was stooped and grey, and walked with a cane,” and, fmally, with an even less specific account that “he looked quite old and leaned heavily on a cane or walking stick.
The trial judge administers the “lay opinion rule” by applying the criteria of Federal Rule 701.
If a witness qualifies as an expert, she may render an opinion concerning subjects within her specialty.
When one of the parties presents a witness who will testify as an expert, the judge must determine whether he or she has the necessary qualifications.
Rule 703 was amended to address tbe admissibility of evidence reasonably relied upon by tbe expert, hut not independently admissible.
Â§ 11.3 BACKGROUND OF CURRENT RULE 702 359 The Frye Test As to the validity of the underlying principles, an early federal case, Frye v. United States, 5 was widely recognized as setting the standard before the adoption of the Federal Rules of Evidence: a scientific principle or process would not be recognized in the federal courts unless it had “gained general acceptance in the particular field in which it belongs.”
The Daubert Test of Reliable Methodology The Supreme Court settled the debate about the applicability of the Frye “general acceptance” test, at least for the federal judiciary, in a 1993 case, Daubert v. Merrell Dow Pharmaceuticals, Inc. 8 There, two sets of parents and their minor children sued Merrill Dow for the children’s birth defects, allegedly resulting from the mother’s ingestion during pregnancy of Bendectin, an anti-nausea drug.
Speaking through Justice Blackmun, the Court held that the Frye test was at odds with the “liberal thrust” of the Federal Rules of Evidence and did not survive the passage of Rule 702.
The Court went on to set out a new standard governing the admissibility of scientific evidence in the federal courts.
The focus is on the relevancy or “fit” of the scientific knowledge (evidence presented by an expert) to the disputed issues in a particular case.
The example also illustrates the cloee connection between the requirement that evidence be scientifically based and the requirement that it be helpful.
In her “gatekeeping” role she must evaluate the reliability and relevance of evidence that may pertain to a scientific field in which she has no expertise.
She also needs to consider the possible application of Rule 403, the now-familiar rule that allows her to reject evidence the probative value of which is “substantially outweighed” by considerations such as unfair prejudice, confusion, and time consumption.
The rule now specifies that an expert may testify to “scientific, technical, or other specialized knowledge” only if, (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
An expert on car accidents cannot simply 883′, “Based on my review of 10,000 accidents, I conclude that the plaintiff was not paying attention at the time of the accident.”
The defendant introduces conflicting evidence, provided by estranged family members, that challenges these assertions.
The hypothetical question, as you can see, not only informs the witness of the pertinent underlying “facts” but it also identifies the assumed facts on which the expert bases his opinion.
Because it is common practice in every profession to rely frequently on the
Factual materials that are not admissible may still underlie the expert’s inferences and opinions, provided these materials are “of a type reasonably relied upon” by other experts in the field.
The expert may testify in terms of opinion or inference and give reasons without first testifying to the underlying facts or data, unless the court requires otherwise.
Rule 704(b) carves out a single exception to the general rule, embodied in Rule 704(a), that an expert may give his opinion as to the ultimate issue in a case.
The use of a hypothetical question is not required by Federal Rule 705 “unless the Court requires otherwise.”
Disclosure to the Jury of Inadmissible Facts Relied on by the Expert Note the closing sentence of Rule 703.
Rule 703 cautions that the risk of misuse of this evidence is so high–and the possibility that an expert may be used as a pretense in order to get such evidence before the jury so real-that disclosure will be permitted on direct examination only rarely.
Suppose, for example, the cross-examiner reveals the source of some of the inadmissible evidence (facts, data, or other expert’s’ opinions) underlying the expert’s’ opinion.
If the other expert was a public official, his report (as opposed to his informal conversations) could probably be admitted into evidence as a public report.
Assuming the topic on which an expert will testify is appropriate, a trial judge must make four related inquiries when deciding whether to admit the testimony of an expert proffered to share her “scientific technical, or other specialized knowledge. ”
28 First, the judge must be satisfied that the witness has the necessary expertise; second, that the principles, data, scientific laws, or studies that underlie the expert’s testimony are sound; third, that the methodology or application of these principles is acceptable, and fourth, that the expert’s conclusions or inferences have sufficient probative value (acceptable “fit”) on the issue before the court to be helpful.
The evidence is no longer necessary Gudicial notice is routine), but in contested cases, courts still require evidence that the radar “gun” was properly calibrated, in good working order, and that a qualified operator used appropriate procedures.
DNA Expert testimony on DNA evidence has quickly moved from the experimental into the accepted realm in both the scientific and legal communities.
The segments separated out by the enzymes will significantly differ for each individual’s sample DNA. RFLP is not only accurate, but the efficacy of this test has been borne out by repeated use over an extended period.
Improper testing procedures could block the admissibility of DNA evidence,31 but the trend, within limits at least, is to hold that testing irregularities affect the reliability (as opposed to the admissibility) of DNA evidence.”
Most of the controversy over admitting a probability assessment has centered on the problem of coincidence-a false match that is the product of mere chance.
Some of the courts insist that the proponent of the DNA evidence adjust the figure to the most conservative possible estimate.”
The government sought to introduce evidence of the probability of a coincidental match based on the general Native American database.
The admissibility of statistics representing the possibility of a coincidental match has been attacked as being unfairly prejudicial when the evidence is subjected to a Rule 403 balancing test.
Courts are usually concerned that jurors would either not understand the complicated statistical evidence presented by the expert or that they would misinterpret this evidence.
For instance, one federal Court of Appeals expressed apprehension “that the jury will accept the DNA evidence as a statement of source probability (i.e., the likelihood that the defendant is the source of the evidentiary sample).”
With the passage of the Federal Rules of Evidence and, generally speaking, a modem trend favoring admissibility (acknowledged in the Daubert decision), courts have revisited the admissibility of polygraph evidence, but have usually come to the same conclusion-polygraph evidence is not sufficiently reliable to be admissible.
The subject may have feelings of anxiety unrelated to the truthfulness of a particular response.
Courts have also pointed to the prejudicial impact of polygraph testing, which could violate Rule 403 on the ground that the potential for prejudice substantially outweighs the probative value of test results.
At present, jurisdictions treat polygraph evidence three different ways.
Some jurisdictions allow polygraph evidence if both parties stipulate to its admissibility prior to the administration of the test.
This type of evidence is usually referred to as “syndrome testimony.”
When correctly used in the proper context, though, the problems generally associated with mathematical evidence can often be minimized.
A more sophisticated form of mathematical evidence involves the application of Bayes’ Theorem.”
‘ The purpose of Bayes’ Theorem is to reduce to mathematical terms the final probative effect when new evidence is added to pre-existing evidence.
The resulting probability, expressed as a percentage, represents the “odds” that a specified conclusion is true, after the new evidence is considered in light of the pre-existing evidence.
Additional evidence is produced showing that the perpetrator of the crime has brown hair.
If the defendant did commit the crime, the probability that the perpetrator’s hair would be brown is 100%.
The prior odds are the odds that the defendant was guilty if the new evidence had not been introduced.
The normal role of the factfmder, to evaluate and weigh the pre-existing evidence, is ignored.
One explanatory device that some courts now use is a display that illustrates the effect of the new evidence on various assumptions concerning the jury’s assessment of the pre-existing evidence.
Another form of mathematical evidence that often fmds favor with the courts is regression analysis.
The expert may be engaged in a process of “torturing the data until they confess.”
The expert may rely upon someone who claims this expertise—e.g., a state contracting officer.
In a civil trial for slander the judge should make it clear to the jurors that the plaintiff, if he is to recover, must convince them of the existence of all of the contested elements of slander: for example, the defamatory statement, its publication, and the resulting damage or harm.
It is important to stress that, as noted in the text above, the “burden of producing evidence” refers to the obligation of producing sufficient evidence for the trier of fact to find each oontested element that is necessary to sustain a claim, counterclaim, or aff11′lilative defense.
In a civil trial, the normal standard of proof is more likely than not (“preponderance of the evidence”); in a criminal trial, the burden of persuasion for the prosecutor is beyond a reasonable doubt.
The standards are intended to indicate the convincing force of the evidence required to meet the burden of persuasion, not quantitatively to measure the evidence.
A defendant who presents five witnesses will not always prevail over a plaintiff who presents only one.
It appears that a state retains considerable latitude to place upon the accused the burden of persuasion for specified defenses.
Each party has an afflrDUlti.ve responsibility of proof, although the defendant will prevail if either the plaintiff fails to persuade the trier of the existence of elements A, B, and C or the defendant does persuade the trier that the alleged statement is true (element D).
The evidence must be at least adequate to permit a reasonable jury, viewing the evidence most favorably to the plaintiff, to find that the existence of the essential elements is more probable than their nonexist~the “preponderance” standard.
In the diagram below, the evidence at a minimum must justify the jury resolution signified by Block II.
Put otherwise, if plaintiff’s evidence has failed to create a reasonable dispute as to one or more disputed elements, the case is resolved by the judge (Block 1).
A (defamatory statement) B (publiClltion) C (tl;un:1ge o r harut) the Eviclencc] f) (tt’Ulh) ultimately to meet his burden of persuasion, the plaintiff must first satisfy the essential requirement of producing evidence sufficient to move all the elements necessary to his recovery from mock I (resolution by the judge) to Block n (resolution by the jury).
388 BUBDENS AND PRESUMPriONS Ch.XD elements (thereby rendering proof unnecessary),’ the plaintiff begins this process in his case in chief by producing evidence to support each element.
He paves the way toward meeting his second and greater burden, that of persuasion.
Absent persuasive rebuttal evidence by the defendant as to those elements firmly established, there would be a resolution by the judge (block Til) in favor of the plaintiff.
The judge either would impose a judgment for the plaintiff (if all elements indisputably were present) or would take from jury consideration, through a peremptory instruction, those elements that were proven indisputably.
If the plaintiff, during his case in chief, were able to produce evidence of such convincing force that the existence of all the necessary elements was indisputable, the state of the evidence would be reflected.
..__, Before the judge resolves the presence of any or all elements in plaintiff’s favor he must give the defendant the opportunity to rebut plaintiff’s evidence.
The depicted state of the evidence requires that the defendant take steps toward rebuttal or else face a judge-imposed outcome.
The burden of producing evidence now h48 shifted to the defendant, although the burden of persuasion has remained fixed upon the plaintiff.
The defendant strives to present evidence of such convincing force that one or more elements would be resolved in his favor by the judge (Block I of diagram) entitling him to a clirected verdict.
As a practical matter multiple shifts in the burden of production are unusual because it is not often that the state of the evidence fluctuates back and forth between the extremes represented by Blocks I and III.
At the close of the evidence, it is frequently the jury, as opposed to the judge, that determines whether an element (that has not been conceded) exists.
Various assumptions about the state of the evidence, including the allocation of the burdens of production and persuasion, can be depicted by using the basic diagram above.
It is necessary that the judge instruct the jury that the plaintiff has the burden of persuasion on the element of damage or harm and the defendant has the burden of persuasion on the element of truth.
If the jury concludes that it is equally likely that plaintiff did or did not suffer damage (or harm) from the defamatory statement, the plaintiff loses.
If the jury believes that the probabilities of the truth or falsity of the defamatory statement are equal, the defendant has failed to carry his burden of persuasion on the affirmative defense.
Whether a party who has met his burden of producing sufficient evidence (by moving his case in Block II) has also met his burden of persuasion depends simply upon whether the trier, at the conclusion of the case, is persuaded by the evidence favoring that party.
When an article is found to be damaged after baving been transported by more than one carrier, a presumption is raised that the last carrier caused the damage.
Note further that because a presumption founded on established facts creates a compulsory fmding that remains obligatory until the presumed fact is rebutted, the raising of a presumption has a mandatory procedural effect: generally, it shifts to the opposing party at least the burden of producing evidence.
For example, it may be presumed conclusively that a child under the age of seven years (basic fact) cannot commit a felony (presumed fact).
The next section will examine whether the considerations behind a particular presumption support a departure from the majority rule that a presumption shifts the burden of producing evidence, but does not disturb the burden of persuasion, which remains fixed upon the party to whom it originally was assigned.
Thayer,” a 19th Century evidence scholar, holds that when a presumption arises after the establishment of the basic facts, its only procedural effect is to shift the burden of producing evidence to the opponent.
The opponent must meet the shifted burden of producing evidence, but he does not bear the ultimate burden of convincing the trier of fact of the nonexistence of the presumed fact.
A jurisdiction adopting Thayer’s position may determine that, in the case of a certain presumption, special considerations warrant the greater presumptive effect of shifting the burden of persuasion.
The majority (Thayer) approach, which does not reassign the burden of persuasion, can be criticized when it is applied to certain presumptions-for example, those that are supported both by convincing probative force and strong policy grounds.
The continuing problem faced by legislatures and courts is whether to adopt, with some exceptions, the Thayer approach or the Morgan approach or, alternatively, to adopt an intermediate scheme that somewhat favors one view or the other but does not coincide with either.
Another approach, usually associated with the California Evidence Code, is to shift the burden of persuasion for those presumptions identified by the legislature or courts as based upon “public policy”/’ presumptions outside the public-policy category shift only the burden of producing evidence.
The position is that a presumption disappears after the introduction of rebuttal evidence that is sufficiently probative to 13.
Once adequate rebuttal evidence is presented, a true Thayer presumption disappears from the case.
Under the pure Thayerian approach, the presumption is extinguished by the presentation of rebuttal evidence that the judge deems sufficient to support a finding that the presumed fact does not exist.
A flexible scheme that treats differently various presumptions within a jurisdiction might be preferable.
As a general approach, Thayer’s position, which has been adopted by the Federal Rules of Evidence (Rule 301) and by a majority of states, suffers no greater disadvantages than the competing theories.
An opponent need only present enough rebuttal evidence to permit a reasonable trier to find the nonexistence of the presumed fact.
If the basic fact is contested, but there is no evidence rebutting the presumed fact, 15 it still is unnecessary to mention the word “presumption”: the judge simply instructs the jury that “If from the evidence you believe that the letter in question was regularly addressed and mailed, you will fmd that it was received.
As a practical matter, this is unlikely to occur because the opponent will probably also offer evidence rebutting the presumed fact.
The basic fact appears to be established.
In a Thayer jurisdiction, the presumption of death-that is, the compulsion to find death-would disappear and the jurors would decide if the plaintiff and her witnesses had convinced them by a preponderance of the evidence that Henry was deceased.
If the jurors believed that Henry was alive in March, 2006, when he was seen in Budapest, it is highly plausible, and probably required, that the jury conclude that he is not deceased at the time of trial—after all, the only evidence of his death is noncommunication.
Under Thayer’s view, the presumed fact would be negated by evidence allowing a reasonable trier to fmd the nonexistence of the presumed fact-to find that Henry was not dead.
Â§ 12.6 Presumptions Under the Federal Rules of Evidence Rules 301 and 302 of the Federal Rules of Evidence deal with presumptions.
Rule 302 specifies that “the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.”
In a case involving both federal and state claims, as well as in cases involving state claims with elements supported by a presumption and an incidental matter also supported by a presumption, the judge and jury may have to deal with several presumptions of differing force and effect.
Despite the passage of Rule 301, the federal courts have occasionally upheld the continuing validity of certain presumptions with early statutory or common law origins that, usually for compelling policy or probative reasons, have been consistently construed as shlfting the burden of persuasion.”
An opponent who already had the burden of persuasion would be adversely affected by a presumption that could not be rebutted by the greater weight of the evidence (the usual standard of persuasion), but rather could be rebutted only if the contrary evidence was at least clear and convincing.
It is possible in the context of conflicting presumptions to give some effect to the presumption raised against the party who normally has the burden of persuasion: the opposing presumption can at least have the effect of negating his presumption and of forcing him to produce evidence of the fact (that would have been presumed) without the added force of a presumption.
Depending upon the jurisdiction and the particular aff!l’mative defense, the accused must either carry the burden of producing evidence or discharge the greater burden of persuading the trier (usually by a preponderance of the evidence) of the existence of the defense.
The usual effect of a presumption is to shift to the opponent only the burden of producing evidence; the burden of persuasion is normally left undisturbed and, in the present context, would remain with the prosecution.
Provocation can plausibly be distinguished from an affirmative defense as the latter does not negate an essential element of the prosecution’s case, but rather introduces new facts that, if believed by the trier, relieves or reduces the defendant’s criminal responsibility.
The effect of the presumption in Mullaney was to relieve the prosecution of the burden, imposed by the leading case of In Re Winship, 30 of proving malice aforethought (an element of the crime charged) beyond a reasonable doubt.
The defendant had to prove provocation by a preponderance of the evidence.
The trial judge instructed the jury that it was permissible to infer possession by all of the defendants from their presence in the vehicle containing the handguns, but that such an inference was not mandatory; it could be ignored even if the defendants produced no rebuttal evidence.
The argument continued, the statutory presumption, even if only an inference, lacked the minimal probative force essential to its constitutionality.
The accused admitted the killing, but claimed that he did not act with the requisite purpose or knowledge and was guilty of a lesser offense.
At the conclusion of the evidence, the trial judge instructed the jury that “[t]he law presumes that a person intends the ordinary consequences of his dants’ vehicle was stopped for speeding.
If a legislature could constitutionally (i.e., consistent with principles of substantive due process and proportionality) defme a felooy of illegal entry without including element (3) (see text above), then courts should not concern themselves with
Â§ 12.8 PRESUMPTIONS IN CRIMINAL CASES 413 For example, the state might define a crime as the illegal entry [element 1] into a dwelling [element 2] in the nighttime [element 3] with the intent to commit a felony therein [element 4] or it might state the offense more broadly, for example, by including only elements 1 and 2, or some other combination of fewer than four.
While the Court generally will allow the state legislature to redefine a crime or allocate to the defendant an aff’=tive defense, a majority of the Justices are uneasy with any procedure that seems to slant the trial court’s fact-fmding process against the accused.
Chapter XIII THE BEST EVIDENCE RULE (Proving the Content of Writings, Recordings, and Photographs) Table of Sections Sec. 13.1 In General: The Rule and Its Purpose.
When maldng choices among relevant sources of evidence to prove a proposition, self-interested parties usually balance considerations of cost and persuasiveness.
The same cannot be said of preferring a writing, recording, or photograph, whether original or duplicate, to oral testimony describing or reciting its contents.â€¢ the Best Evidence Rule still serves its original purpose of enhancing accurate factfmding, but grants more flexibility to litigants and judges in light of modern technology.
Â§ 13.2 Application: Proving the Contents of a Writing Before determining if the Best Evidence Rule is satisfied, you must determine if it applies at all.
If application of the Best Evidence Rule to a chattel would not serve the 1.
The first approach does not involve the Best Evidence Rule because the proponent is not attempting to prove the terms of the recordation,’ but merely is presenting evidence of an event perceived by a witness with firsthand knowledge.
If the proponent chooses to make his proof by use of a writing or recording, the Best Evidence Rule must be satisfied.
Beyond this kind of “intent” determination, reference to the substantive law is often necessary to ascertain what constitutes an original for purposes of the Best Evidence Rule.
( a manually retyped copy, like a handwritten copy, always constitutes secondary evidence because the risk of mistranscription is present.)
Â§ 13.4 Application: Recordings and Photographs; Statutory Modifications As we have seen, the Federal Rules extend application of the Best Evidence Rule beyond writings to include sound recordings and photographs.
But if the proponent is attempting to prove the content of a photograph (as in the case of an X-ray, or a surveillance camera photograph), 10 the Best Evidence Rule applies.
Statutory Modifications Federal or state statutory provisions sometimes modify the usual application of the Best Evidence Rule.
The Federal Rules contain no provision for classes of secondary evidence.
Secondary evidence (officer testimony) was permissible.
Â§ 13.5 Role of Judge and Jury; Classes of Secondary Evidence Typically, questions about which recordations are originals, duplicates, or secondary evidence is a preliminary question of fact decided by the trial judge pursuant to Rule 104(a).
The court’s resolution of the issues described in Rule 1008 would go beyond mere trial administration and effectively dictate the outcome of the case.
The drafters of the Federal Rules intended to protect the jury’s factfinding role in these situations, subject to the court’s management and the usual requirement that conditionally relevant facts be accompanied by sufficient evidence of the conditioning (underlying) facts.
[There is other evidence supporting the validity of the Japanese marriage.] 10.
On the issue whether Mario disliked Scarpia, Mario’s statement to W A, “That bastard, Scarpia, he arrested me on a false charge, tortured me, and raped my dearest Tosca.”
On the issue whether Sarcristan violated securities laws by falsely announcing to English stockjobbers that Napoleon had won the Battle of Waterloo, testimony by Rothschild that as soon as his messenger heard the announcement, he reported it to Rothschild.
For example, if Madam Butterfly’s depression (question 2) were not consequential under the substantive law governing the case, evidence that tended to make her depression more (or less) likely would be irrelevant.
In considering the admissibility of evidence, you should first resolve the relevance question.
The evidence is offered to show the probable effect of the declarant’s statement on Butterfly’s state of mind.
Assuming, as the problem suggests, that this evidence is offered by Suzuki and not against her as a party admission (See FRE 80l(d)(2)), the evidence is hearsay.
Consider the possibility the messenger’s statement is an excited utterance.
Error may not be predicated upon a ruling which admits or excludes evidence unless a sub stantial right of the party is affected, and (1) Objection.
In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Nothing in the rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
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 the provisions of subdivision (b).
In making its determination it is not bound by the rules of evidence except those with respect to privileges.
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a f’mding of the fulf’illment of the condition.
Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.
Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury .
Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.
434 FEDERAL RULES OF EVIDENCE Rule 402 these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused.
Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of alleged victim.
And subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the fll’st aggressor; (3) Character of witness.
In which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.
Subsequent Remedial Measures When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.
The rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
The rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
(c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard.
Evidence of Similar Crimes in Sexual AsÂ· sault Cases (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attomey for the Govemment shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
Evidence of Similar Crimes in Child Molestation Cases (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicated on a party’s alleged conunission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s conunission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.
(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
442 FEDERAL RULES OF EVIDENCE Rule 502 (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred.
(f) Controlling effect of this rule.-Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule.
And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
General Rule of Competency Every person is competent to be a witness except as otherwise provided in these rules.
State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a fmding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.
The rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
Competency of Judge as Witness The judge presiding at the trial may not testify in that trial as a witness.
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or
Rule 609 WITNESSES 445 untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
446 FEDERAL RULES OF EVIDENCE Rule 609 er, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
The court may in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
Leading questions should not be used on the clirect examination of a witness except as may be necessary to develop the witness’ testimony.
Prior Statements of Witnesses (a) Examining witness concerning prior statement.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an
448 FEDERAL RULES OF EVIDENCE Rule 613 opportwtity to explam or deny the same and the opposite party is afforded an opportwtity to interrogate the witness thereon, or the interests of justice otherwise require.
Exclusion of Witnesses At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.
Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
450 FEDERAL RULES OF EVIDENCE Rule 704 because it embraces an ultimate issue to be decided by the trier of fact.
The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection.
A witness so appointed shall advise the parties of the witness’ fmdings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party.
In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
Nothing in the rule limits the parties in calling expert witnesses of their own selection.
A statement is not hearsay if-(1) Prior statement by witness.
Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impreHion.
Evidence of a fmal judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the
Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
In a prosecution for homicide or in a civil action or 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 believed to be impending death.
Hearsay Within Hearsay Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
Attacking and Supporting Credibility of Declarant When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the crediÂ· bility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.
Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportuÂ· nity to deny or explain.
If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a fmding that the matter in question is what its proponent claims.
462 FEDERAL RULES OF EVIDENCE Rule 902 (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
Subscribing Witness’ Testimony Unnecessary The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.
Admissibility of Other Evidence of Contents The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-(1) Originals lost or destroyed.
If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

Functions of Court and Jury When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulf’illed is ordinarily for the court to determine in accordance with the provisions of rule 104.

FEDERAL RULES OF EVIDENCE Rule 1101 cases, to criminal cases and proceeclings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under title 11, United States Code.

The rule with respect to privileges applies at all stages of all actions, cases, and proceeclings.

The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104.
Amendments Amendments to the Federal Rules of Evidence may be made as provided in section 2072 of title 28 of the United States Code.

Principles of Evidence – Part 2

Daryl — Sun, 07 Aug 2011 16:45:41 +0000

Â§ 3.6 RULES OF RELEVANCE RELATED TO CHARACTER 91 be useful to recall the basic principle that individual items of evidence need not meet the standard of proof that applies to the totality of the evidence.
Although the sum of all the evidence in a criminal case must support belief of the accused’s guilt beyond a reasonable doubt, this standard of proof is not applied to individual items of evidence.
Observe that the use of other (collateral) misconduct evidence is another illustration of the principle of conditional relevance.
Under Rule 104(b), which governs conditional relevance, the proponent of other bad act evidence must produce evidence that is sufficient “to support a fmding”07 of its existence.
The leading case, which determined that the Federal Rules require only sufficient evidence to support a finding the uncharged misconduct occurred, is Huddleston v. United States.
The federal courts and most state courts reject the position that an acquittal of the collateral offense bars relevant evidence pertaining to it in the trial of another (charged) offense.”
‘ The Probative Value of Multiple Similar Acts of Uncharged Misconduct Cases arise in which a series of related events or acts, when considered cumulatively, have strong probative value with respect to some feature of the charged crime, and are not barred by the rule against character evidence because they are prohative of something other than propensity.
The prosecutor offered evidence that over an extended period, children in the accused’s care had suffered twenty cyanotic episodes.
On the theory, the judge admitted evidence of these collateral events.
Proper Purposes for Admitting Evidence of Uncharged Misconduct: Illustrations Rule 404(b) sets out a number of propositions for which evidence of uncharged misconduct is often received.
It is clear from the language of the rule, as well as its legislative history, that the drafters of subsection (b) created an open-ended system in which the trial judge neither mechanically excludes, nor routinely accepts, uncharged misconduct evidence.
The examples below set out a sampling of circumstances in which consequential propositions normally can be established by the introduction of uncharged misconduct evidence.
The chain of inferences based upon this evidence usually leads to an inference about either the actor’s conduct, or his state of mind, or both; that is, the evidence is probative without having to assume that the defendant was acting in accordance with a bad character trait.
For example, suppose evidence of the uncharged crime, such as the 71.
For a thoughtful argument that the doctrine of chances is not an escape from the rule forbidding propensity evidence, but violates the rule, see Paul F. Rothstein, Intellectual Coherence in An Evidence Code, 28 LoY. L. A. L. REv.
The uncharged misconduct evidence allows the trier to infer plan or preparation, which in turn allows it to infer conduct or identity.
Other illustrations appear below: (1) In the prosecution of D for the murder of V, evidence that Vhad threatened to expose D’s participation in a land fraud scheme is relevant to show motive; in other words, to reveal the reason why D might have committed the criminal offense charged.
Evidence of the theft of other rented cars by D is relevant to establish D’s intent.
Because the crime of theft is usually defined so as to require a taking of goods with the purpose of depriving the owner (either permanently or for a substantial period of time), evidence of other thefts bears upon the mental element of intent.
From the conclusion, further inferences can be made about the actor’s conduct or mental state in connection with the offense charged.
It is necessary that the prosecutor provide sufficient evidence for the trier of fact to conclude that D knew or should have known that the other goods were stolen.
Evidence of other crimes is admissible to prove identity when identity is in question (that is, when the accused denies that he participated in the charged crime) and when the modus operandi of the two crimes is sufficiently distinctive and similar to be substantially probative of identity.
Even when the principal and collateral crimes are largely dissimilar, it may be possible to introduce evidence that a distinctive feature linking the defendant to the collateral crime(s) is also involved in the crime charged.
If the act is “inextricably intertwined” with the charged crime, then evidence of the act is not governed by Rule 404(b), which by its terms applies to evidence of “other crimes wrongs or acts.
Â§ 3.6 RULES OF RELEVANCE RELATED TO CHARACTER 97 Criminal and Civil Cases In all of the examples and illustrations discussed in this subsection, other crimes evidence has been offered by the prosecution against the accused.
The rule is broad enough to include civil cases, as well as the comparatively rare cases in which an accused invokes Rule 404(b).
D is not attempting to prove the “criminal” character of the perpetrator of C-1, but is introducing the evidence on the specific point of identity.
The court would then, under Rule 403, determine whether the prejudicial effect of admitting the evidence substantially outweighs its probative value in proving intent.
As we have noted before, when evidence of the accused’s collateral misconduct comes before the trier of fact, it may produce an impassioned or angry response.
The possible reaction raises the risk the trier will use the evidence for the forbidden “propensity purpose,” or that it will conclude that the defendant’s past justifies
98 RELEVANCE Ch. m his incarceration (or other penalty) even if he did not commit the crime with which he is now charged.
The judge should be especially cautious when ruling on the prosecution’s offer of uncharged misconduct evidence.
The general requirement that evidence of collateral offenses must have probative force above the propensity level begins our inquiry, but does not end it.
In which evidence of uncharged misconduct is admitted for a purpose other than proving character, the trial judge must determine whether the evidence is sufficiently probative for the permissible purpose for which it is offered.
If the probative value for the permissible purpose is substantially outweighed by the risk of prejudice, jury confusion and delay, then the uncharged misconduct evidence will be excluded under Rule 403.
One critical factor in assessing the probative value of uncharged misconduct evidence is whether there is ample other evidence bearing on the not-for-character purpose, so that resort to bad act evidence is unnecessary.
If the circumstances of the case themselves indicate clearly that the accused intended to fire a gun, evidence of uncharged similar misconduct is not very probative because it doesn’t further the government’s case-it is cumulative.
All of the factors must be taken into account when a judge rules on the admissibility of uncharged misconduct evidence.
The general point is this: in each case posing the issue of uncharged misconduct evidence, the judge must take full account of the circumstances before him.
These and other contextual factors often complicate the trial judge’s decision when he is faced with an offer of evidence of uncharged misconduct.
Because of the potential impact of evidence involving collateral bad acts, as well as the need for full consideration of the evidentiary issues, Rule 404(b) entitles the accused to demand notice from the prosecution that it intends to offer evidence of uncharged misconduct.
The purpose of the evidence disclosing V’s violent or threatening nature is to demonstrate that D had a reasonable basis for fearing V, and was justified in taking protective steps.
The evidence in this instance is not offered to prove any person’s character and is not barred by Rule 404.
Relevant evidence is excludable if its admission would contravene another rule of evidence.
The evidence of V’s threat would be rejected, for example, if it constituted inadmissible hearsay.
“‘ And, as discussed above, the evidence does not run afoul of the bar on character evidence.
V’s threat against D is admissible even though D was unaware of it.
Rules 413-15 reject the general principle of Rule 404 that excludes evidence of collateral conduct (such as a crime) when its only probative value is to demonstrate a character trait or predisposition.
The premise of Rule 404 is that evidence of character offered to prove particnlar conduct is generally excluded because its probative value is insufficient to overcome countervailing considerations such as prejudice, confusion, and time consumption.
But Congress overrode Rule 404′s exclusionary principle when it enacted Federal Rules 413-15.71 77.
During the first half of the Twentieth Century, judges would have usually admitted this evidence.
Federal Rule 412 Federal Rule 412 begins, in subsection (a), by generally prohibiting specified kinds of evidence “in any civil or criminal proceeding involving alleged sexual misconduct …. ”
Sherry F. Colb, “Whodunit” Ver8U8 ‘What Was Done”: When to Admit Character Evidence in Criminal Cases, 79 N.C.L. REv.
The party who seeks to escape the general exclusionary rule of subsection (a) must file a written motion describing the evidence to be offered and its purpose.
The court conducts an in camera hearing at which the proponent, the victim, and all parties may appear and advance their respective arguments.
There are three exceptions to the general exclusionary rule of Rule 412(a): First, Rule 412(b)(1)(A) allows evidence of “specific instances of sexual behavior by the alleged victim” when the accused offers this evidence in an effort “to prove that a person other than the accused was the source of semen, injury or other physical evidence.
” For example, the accused might offer evidence of V’ s sexual relations with a third person as the explanation for her pregnancy, venereal disease, or physical injuries such as bruises or fractures.
Most courts have found evidence of false claims to be barred by Rule 412.
See 8ALTZBURG, MARTIN & CAPRA. FEDERAL RULEs OF EviDENCE
Note that “consent” is the only allowable purpose for which the accused may offer evidence of other sexual activity with the victim.
Rule 412(b)(l)(C) allows any evidence, “the exclusion of which would violate the constitutional rights of the defendant.”
The occasions when the exclusion of evidence would oomport with the Federal Rules of Evidence violate the oonstitutional rights of the accused, are infrequent.
They crafted the Rules so as to minimize constitutional concerns.”
There are circumstances in which application of Rule 412 or other (state) versions of rape shield statutes may have such a restrictive effect on the accused’s ability to defend himself that oonstitutional principles override the statutory prohibition that usually disallows evidence revealing the victim’s sexual behavior.
Â§ 3.6 RULES OF RELEVANCE RELATED TO CHARACTER 105 Constitution requires that D’s evidence be received.”
In Illustration (1), the accused can successfully argue that rejection of his proffered evidence would violate his constitutional right to “confront” an adverse witness.
The Constitution would accord to the accused the right to introduce evidence that he made remarks to V that angered her.
Suppose the judge applies evidentiary rules that severely circumscribe the accused’s testimony.
Rule 412: Civil Cases Subsection (b)(2) of Federal Rule 412 applies to civil cases and governs the introduction of evidence bearing upon the “sexual 87.
Although the principal feature of Rule 412(b)(2) is a balancing test, the proponent of evidence that discloses V’ s sexual behavior or sexual predisposition faces imposing obstacles.
As is generally true when evidence is admitted under Rule 412, that evidence must be admissible under any other evidentiary rule that might apply.
That evidence must surmount a special balancing test that is contained in, and specific to, Rule 412(b)(2).
The proponent of the evidence must convince the judge that the probative value of the evidence of sexual behavior or predisposition substantially outweighs “the danger of harm to any victim and of unfair prejudice to any party.”
Essentially Rule 412 calls for a “reverse-403″ balancing test-tilted heavily toward excluding evidence.
” Another feature of Rule 412(b)(2) addresses the admissibility of reputation evidence that portrays the victim’s sexual predisposition.
She might, for example, offer evidence of her “good” reputation as bearing on the issue of damages.
Such evidence would not violate the general rule that evidence of character is inadmiBSible in civil cases.
The rule of inadmissibility applies only if evidence of character is being used to prove conduct on a particular occasion.
Under the Federal Rules, evidence of similar sexual offenses is admissible in both civil and criminal cases when specified sexual misconduct is alleged.
The rule goes on to require that the government must give timely notice to the accused of its intention to offer evidence of similar sexual offenses, including a disclosure of what evidence will be offered.96 Note that Federal Rule 413, like its companion rules, 414 and 415, limits “other offense” evidence to sexual offenses of the same type as the charged offense.
Because Rule 413 addresses only sexual assault prosecutions, it lets in only evidence of other sexual assault crimes.
The rule would not, for example, allow evidence of a prior sexual assault committed by one who was being prosecuted for homicide or armed robbery.
The rule would not allow evidence of dissimilar offenses (such as a criminal battery) in a prosecution for sexual assault.
Rule 413(a) allows evidence of a collateral sexual assault “for its bearing on any matter to which it is relevant,” iru:luding propensity.
Recall, also, that the alleged victim of the sexual assault being prosecuted is given substantial protection under Rule 412 against evidence disclosing her sexual behavior or predisposition.
Many factors, such as the similarity of the collateral sexual assault(s) to the charged offense, the recency and the other offense(s), the number of collateral offenses, the strength of the evidence supporting the collateral offense(s), and whether there was an acquittal of the other offense(s), should bear on the trial judge’s Rule 403 determination.
It is notable that the Rule 403 test applies differently to uncharged misconduct evidence under these rules than it does to evidence offered under Rule 404(b).
Rules 413-415 provide that the trial court must consider the prior act of sexual assault as probative of the defendant’s propensity to commit the crime charged.
Under Rules 413-415, the jury is allowed to draw the inference that because the defendant has committed sex crimes before, he has a propensity to commit them and is more likely to have 97.
The risk of drawing the propensity inference cannot be considered “prejudicial” when the trial judge conducts the Rule 403 balance in sexual misconduct cases under Rules 413–415.
The judge will treat evidence of the other sexual assault under the usual approach to issues of conditional relevance,’” and screen evidence of the collateral sexual assault only to ensure that there is sufficient evidence of its existence to allow a reasonable jury to conclude (by a preponderance of the evidence) that it did occur.99 This is the approach that is taken with regard to uncharged misconduct evidence under Rule 404(b).’00 The dispositive case under Rule 404(b) is Huddleston v. United StaJ;es.
It will be seen that in most respects Rule 414 is the mirror image of Rule 413; the major difference is that Rule 413 applies to a charge of sexual assault, whereas Rule 414 applies to a charge of child molestation.
Â§3,6 RULES OF RELEVANCE RELATED TO CHARACTER 111 Civil Cases Involving a Sexual Assault or Child Molestation Rule 415 addresses the admissibility of evidence of other offenses of sexual assault and child molestation in civil cases.
Other rules of evidence may deny or qualify the admissibility of evidence within the ambit of Rule 415.
“‘ Under Rule 415 evidence of other acts of sexual assault or child molestation of the same type alleged in the civil case come into evidence as bearing on the conduct in question.
Since the party, let us say the plaintiff, is alleging she is a victim, Rule 412′s application to civil suits calls upon the judge to apply Rule 412(b)(2)’s special balancing test that generally excludes evidence of a victim’s sexual activity or predisposition.”
The goal is presumably accomplished by excluding evidence that is offered for the forbidden purposes specified in the various rules we will encounter.’
Aware of the exclusionary rule, the plaintifl’s lawyer offers evidence that following an accident in the defendant’s machine shop, the defendant added safety devices designed to reduce or eliminate the occurrence of similar accidents.
In making his offer of proof, the plaintiff’s lawyer states that evidence of the newly installed safety devices is not offered for the purpose of proving the defendant’s negligence, but rather for the limited purpose of showing that safer machines were feasible.
The protective rule of exclusion would be undermined if a party could successfully avoid it by offering the forbidden evidence for a “different” purpose that was not even contested.
Â§ 4.2 Subsequent Remedial Measures Federal Rule 407 addresses evidence of remedial measures taken after an event that has caused harm or injury.
The policybased assumption underlying Rule 407 is that admitting evidence of subsequent remedial measures would discourage potential defendants from taking precautions that are in the public interest.
The assumption that defendants would not make changes without 2.
Whether or not Rule 407 makes it more likely that safety measures will be taken, the Rule finds other support in the fact that the probative force of evidence of post-accident remedial measures is usually weak.
Put otherwise, “the rule [barring evidence of remedial measures] rejects the notion that because the world gets wiser as it gets older it was stupid before. ”
Text of Rule 407 Observe carefully the text of Federal Rule 407.
The rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, 3.
Â§4.2 SUBSEQUENT REMEDIAL MEASURES 115 such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment_ The rule states the purposes for which evidence of subsequent remedial measures is not admissible, including proving negligence or a defect in a product or its design.’
Evidence offered for permissible purposes may encounter other evidentiary rules that foreclose admissibility-most importantly, the possibility that its probative value for a permissible purpose is substantially outweighed by the risk that the evidence will be misused by the jury for impermissible purposes (in which case the evidence will be excluded under Rule 403).5 the first concern of the proponent is purpose.
As currently written, Rule 407 (amended in 1997) expressly prohibits evidence of subsequent remedial measures in order to prove the defendant’s product was defective.
The theory is that the manufacturer has such strong incentives to correct defects and contain or prevent injuries by product modifications, warnings, recalls, and the like, that a rule that blocks evidence of postaccident remedial measures is not needed.
It is clear (in states that do not apply Rule 407 to product liability cases) that such steps could and probably will be used as adverse evidence in litigation.
In close cases, the admissibility of evidence of subsequent remedial measures might be an important consideration.
Rule 407 does not bar the proffered evidence.
In a suit against X city filed by the injured bicyclist, evidence of the warning sign would not be banned by Rule 407 ,’ although other exclusionary rules might apply.
8 The Principal Escapes From Rule 407: Ownership, Control, Feasibility, and Impeachment Rule 407 states explicitly that its exclusionary ban applies only when evidence of post-accident remedial measures is offered, essentially, to prove fault in the defendant’s conduct or product–either as a recognition of negligence or that a product was defectively designed or manufactured.
One unenumerated purpose (supporting the introduction of 41remedial” evidence) that has found approval in the cases is rebutting the defendant’s claim that the plaintiff was contributorily negligent.
The plaintiff could introduce evidence that after the accident, the contractor erected warning signs on that portion of the road.”
The purpose of the evidence would be limited to proving that the contractor had control over the location.
The plaintiff will try to show that the post-accident remedial measure or at least an equivalent measure was possible at the earlier date, and Rule 407 would not prohibit the evidence if offered to prove feasibility in this instance.
At the conclusion of the trial, the defense lawyer, in his closing argument, asserts that in following the advice of the police chief, the defendants had done all they “could or should have done.”
Although the trial judge would have ruled on the admissibility of the evidence prior to the closing argument, the defense lawyer’s argument that Carl and Janet did all they 44could” have done as well as all they “should” have done confirmed that Carl
On which this Illustration is based, a divided panel of the Eighth Circuit Court of Appeals held that the trial judge abused his discretion when he rejected evidence of the defendants’ subsequent precautionary measures.
The Court’s majority held that the defendants’ evidence controverted feasibility because the defendants contended, in essence, that peep holes and safety chains could not have been successfully employed.
18 Impeachment Rule 407 lists impeachment as one of the illustrative purposes for which evidence of subsequent measures is admissible.
The key to admissibility is a showing that the testimony of a witness (typically the defendant) is contradicted by a subsequent remedial measure that he, himself, ordered or implemented.
Note that the “if controverted” requirement of Rule 407 applies to evidence of subsequent precautionary measures introduced to show ownership, control, or feasibility; the requirement does not apply to evidence of such measures introduced to impeach a witness.
The application of the “if controverted” requirement to impeachment was claiming that nothing more “could” have been done-which opened the door to the evidence otherwise barred by Rule 407.
Some courts have taken the position that a stipulation is essential in order to render evidence of subsequent precautions inadmissible.
Most courts have held that a subsequent remedial measure is not admissible for impeachment if it is offered for simple contradiction of a defense witness’s testimony.19 Essentially, the limited probative value of the evidence for impeachment is substantially outweighed by the risk of prejudice and confusion resulting from the possible misuse of the subsequent remedial measure by the jury.
If the defendant’s witnesses testify in superlatives—e.g., “this is the safest product on the market” -then the evidence of a subsequent remedial measure provides more than simple contradiction.
The evidence of the offer is relevant.
Contrast the foregoing offer with an offer by Descartes of $500 to settle the case.
Admitting settlement offers would likely result in both plaintiffs and defendants making offers to create afi=ative evidence for trial rather than making genuine offers intended to settle a case.
The best rule to encourage offers of compromise is one that disregards the amount of the offer and simply declares that evidence of an offer of compromise is inadmissible: (a) If made by the plaintiff, to show that his claim is weak; (b) If made by the defendant, to show that his defense is weak.
Federal Rule 408 With this brief introduction in mind, examine carefully the text of Rule 408, which was amended in 2006: 20.
(b) Permitted uses.-This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a).
The rule also includes settlement activity between a party and a third person.21 Second, the rule protects evidence of “conduct or statements made in compromise negotiations,” thereby making it unnecessary for a negotiating party to constantly resort to such protective statements as “assuming arguendo my client was speeding … , ” or alternatively, employing such prefatory remarks as “without prejudice” or “hypothetically speaking.
” Prior to the widespread adoption of the Federal Rules of Evidence, laWYers routinely used these cautionary phrases during negotiations in order to avoid making an inadvertent statement of “fact” that could be used against their clients should there be a trial.
Statements and offers made to resolve a dispute before litigation are protected by Rule 408 if litigation ultimately ensues.
Purposes for Which Evidence of Compromise is Not Forbidden by Rule 408 The fmal sentence of Rule 408 contains a familiar theme: the protective provisions of the rule do not apply when evidence concerning a compromise is offered for purposes other than to show that a claim or defense is weak.
When, at trial, Universal’s president starts to testifY about the tentative agreement under which his bsnk engaged for a period of time in rollovers, American objects, citing Rule 408.
23 Impeachment As discussed above, a witness may be impeached with evidence that he compromised a related matter-this could show a motive to falsify in the matter in which he is testifying-i.e., that he is biased.
Evidence of compromise might be relevant for two other forms of impeachment.
It can be seen that if compromise evidence could be used for contradiction or prior inconsistent statement impeachment, then much of the protection of Rule 408 would be lost.
The 2006 amendment to Rule 408 specifically prohibits statements and offers in compromise to be admitted for purposes of impeachment by way of contradiction or prior inconsistent statement.
Use of Evidence of Civil Compromises in Subsequent Criminal Cases Assume a defendant is sued by consumers for fraud.
The Advisory Committee Note to the 2006 amendment explains that admitting evidence of civil compromises in subsequent criminal cases “could deter defendants from settling” a civil action.
Rule 409 does not protect collateral statements made together with offers to pay medical bills.
That part of Phil’s statement admitting fault gains no protection from Rule 409; nor does it gain any protection from Rule 408 because, at the time of Drew’s statement, Phil and Drew were not compromising a “claim …
” had Phil and Drew actually been in settlement negotiations, Rule 408 would have protected all “statements made in compromise negotiations …. ”25 This broader protection is necessary in the extended give-and-take of settlement negotiations.
Any excess protection offered by the rule comes as a windfall to her ….
Rule 410 protects withdrawn guilty pleas and pleas of nolo contendere; the rule also protects statements regarding those pleas made at plea hearings or proceedings.
It protects statements during the course of plea discussions between defendant (often speaking through his counsel) and the attorney for the prosecution, where those statements do not result in a guilty plea, or which result in a plea of guilty later withdrawn.
The jury might view evidence that the defendant was prepared to enter a guilty plea to a lesser offense as a convincing indication that he was guilty of the crime charged.
For example, evidence of remedial measures taken after an injury-causing event cannot be introduced to prove negligence, but it can be used for other purposes, such as feasibility if controverted.
129 Observe that the provisions of the rule that declare certain evidence inadmissible do so by addressing: (1) pleas and statements (2) civil and criminal proceedings (3) the party (namely, the defendant) entitled to the rule’s protection.
What Pleas and Statements are Protected and Why Subsection (1) of Rule 410 renders inadmissible evidence of “a plea of guilty which was later withdrawn.”
Rule 410 also renders inadmissible evidence disclosing that the defendant entered a plea of nolo contendere.
Rule 410 renders inadmissible evidence of “any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.”
Note also FRE 803 (22), which creates an exception from the hearsay rule for certain judgments but not those entered pursuant to nolo pleas: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: …
(22) Evidence of a fmal judgment, entered after a trial or upon a plea of guilty (but rwt upon a pka of rwlo contendere) … ”
Suppose the defendant introduces evidence of a statement that Rule 410 would exclude if offered against the defendant.
33 The second exception contained in Rule 410 is designed to thwart a defendant’s attempt to shield himself from a peljury prosecution.
If during the plea process the defendant makes a statement “under oath, on the record and in the presence of counsel”" and is later prosecuted for “peljury or false statement,”‘” evidence of the statement is admissible in the trial for the allegedly false testimony.
The formal requirements that attend this exception, namely the oath, a transcript, and the presence of counsel, largely conf”me it to prosecutions for false or peljurous statements made during a plea hearing conducted under Rule 11 of the Federal Rules of Criminal Procedure.
Waiver of Rule 410 Protections We have seen that in the adversarial system of litigation, the parties largely control the evidence that comes before the court.
Consider whether a prosecutor could refuse to “plea bargain” with a defendant unless the latter waived some of the evidentiary protections afforded to him by Rule 410.
At the outset of the meeting, the prosecutor set forth his conditions: the defendant had to be completely truthful and he had to agree that any statements made during the plea discussions would be admissible if a trial ensued to impeach the defendant if he gave testimony that contradicted his statements during the plea discussions.
The prosecutor terminated the plea discussions and brought the defendant to trial.
The prosecutor then introduced evidence of the earlier statements, as prior inconsistent statements, despite the defendant’s objections that the protections afforded by Rule 410 could not be waived.
The Court also noted that Rule 410 favored the defendant, not the prosecution.
Although some defendants may eschew plea discussions rather than waive a right protected by Rule 410, the prosecutor may decline plea discussions unless the defendant agrees to such a waiver-thus, the defendant’s power to waive Rule 410 protection allows the possibility of a deal with the government that might not otherwise be reached.
There are occasions when statements by the prosecutor during plea discussions would be useful to the defendant at a subsequent trial.
If the defendant offers evidence of statements like these at his subsequent trial, Rule 410 appears inapplicable.
Routinely allowing this kind of evidence appears to discourage prosecutorial candor.
At the conclusion of these talks, P offers to reduce the charge to grand theft if D agrees to plead guilty to this lesser charge.
At D’s trial for armed robbery, defense counsel offers evidence that P offered to reduce the charge against D from armed robbery to grand theft.
The rule does not protect the prosecution from adverse evidence.
134 RELEVANCE: SPECIAL APPLICATIONS Ch. IV excludes evidence of a prosecutor’s offer and statements made by the prosecutor in plea negotiations.
The concern of the courts is that allowing “plea-bargaining” evidence against the prosecution will have an adverse effect on plea discussions and plea offers by the prosecutor.
Rule 403, you may recall, empowers the judge to reject relevant evidence when its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, [or] waste of time ….
If the accused introduces evidence that the prosecutor offered to reduce the charge, the jury may never learn what actually motivated the offer.
Â§ 4.6 Liability Insurance Federal Rule 411 prohibits evidence that “a person was or was not insured against liability” when this evidence is offered as bearing on whether the person “acted negligently or otherwise 39.
See, e.g., United States v. Verdoom, 528 F.2d 103, 107 (8th Cir. 1976) (evidence of prosecutor’s plea-bargaining stance as proof of government’s weak case is inadmissible); United States v. Delgado, 903 F.2d 1495, 1499 (11th Cir. 1990) (Rule 403 supports rejection of defense evidence of statements of prosecutor and plea offer because reasons other than weakness in government’s case may he explanatory).
The rule is broad enough to preclude evidence that a person had no insurance, but its main application is to forbid evidence of insurance coverage.
If evidence of liability insurance were routinely admitted for whatever probative force” it might have on the conduct of the insured, the incentive to purchase insurance might be weakened.
The insured would have to consider the possible impact of this evidence on the jury; the insurer would have to consider the impact of this evidence on premiums it charges.
Exclusion is not required when evidence of liability insurance is “offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”
Evidence of the relationship is admissible to impeach the witness, even though it incidentally reveals the fact that the defendant has liability insurance.
Rejection of evidence of liability insurance could rest on the justification of minimal probative value.
But Rule 411 does not leave the issue of admissibility of evidence of liability insurance to a mere relevance determination and its attendaot fluctuations from case to case.
The evidence probably falls withln one of the enumerated exceptions to Rule 411 ‘s prohibition against the disclosure of liability insurance.
The classic hearsay situation is this: a witness testifies that someone else (whom we call the declarant) made a statement about an event that is in dispute at the trial.
The witness relates the statement, but cannot verifY that the declarant was telling the truth.
Cross-examining the witness relating the statement in court is not a sufficient safeguard, because the witness cannot tell the factfinder about the declarant’s sincerity, perception, etc.
If his statement is not offered for its truth, the only question for the trier of fact is whether the declarant made the statement to which the witness on the stand testifies.
The assumption underlying the hearsay rule is that crossexamination can test for and reveal these infll”mities.
The lack of opportunity to cross-examine the person with personal knowledge of the event that the statement is offered to prove is the fundamental reason for excluding hearsay evidence.
Â§5.2 A DEFINITION OF HEARSAY 141 Â§ 5.2 A Definition of Hearsay We begin a detailed analysis of the hearsay rule by exanrining the “defmitional” portions of Federal Rule 801.
Judges may sometimes exclude evidence derived from these various sources, but not because of the 4.
Evidence derived from devices or animals is tested for reliability by the cross-examination of persons who are acquainted with the operating principles and particular features of the device or the training and history of the animal.
It is important to focus closely on the purpose for which the declarant’s statement is offered.
In the situations, the trial judge must consider whether to exclude the evidence on one (or more) of the grounds set out in Rule 403,5 especially the ground of “unfair prejudice.”
If the trial judge decides to admit the evidence for a nonhearsay purpose, the opponent of the evidence is entitled to have the judge instruct the jury members that they can consider the evidence only for its proper (nonhearsay) use and not for its forbidden hearsay use.
An early case,â€¢ still cited in many evidence texts, concerned a suit against a bank for the conversion of plaintiff’s corn.
D’s assertions may be received as evidence that he openly claimed in a minority jurisdiction, Father’s declaration is part of a shift in legal relations, and as such, is not hearsay.
The only question at trial is whether the declarant actually made the statement—a question that can be addressed by cross-examining the witness who testifies that she heard the declarant make the statement.
Â§5.3 STATEMENTS THAT ARE NOT HEARSAY 147 the trier to assess the probable effect of the terrorists’ words on the accused’s state of mind and to judge his conduct .
(If D’s mental state is not relevant, then the physician’s statement could not be admitted for its effect on the listener because to do so would violate Rule 403—its probative value to prove D’s mental state would be substantially outweighed by the risk that the jury would misuse the statement for its truth.)
In the fourth illustration, the evidence helps to prove that the officer acted reasonably when he arrested X. This is because the arrest is legal if there is probable cause, and under that standard, it is not required that X actually committed the offense; it is enough for the officer to reasonably believe that X committed the offense.
There is a rather indistinct line separating a declarant’s statements that the trier can use circumstantially for their implicationthus avoiding the hearsay rule because the statement is not offered for the “truth of the matter asserted” -and statements in which the implied proposition is so close to the surface of the expressed statement that the declarant was probably aware that she was making two assertions: one explicitly and the other implicitly.
You can argue that the evidence of declarant’s statement is not offered to prove that X has these traits.
But American Courts applying the Federal Rules of Evidence would classify the letters as nonhearsay-because there was apparently no intent on the part of the writers to communicate their belief that 13.
The trial judge should reject the evidence under Rule 403 as lacking sufficient probative value.
On appeal X’ s counsel argues that the trial judge made an error in allowing this “hearsay” evidence.
The rule defmes a hearsay statements as an oral or written assertion (or conduct that substitutes for words) that is intended by the declarant to assert the proposition for which the statement is offered.
Counsel for D objects, citing the rule against hearsay.
Under the hearsay rule, assertions are treated the same way whether they are verbal or by conduct-the question is whether the actor or speaker had the intent to communicate the assertion that is offered for its truth.
The court held that the mother’s testimony did not violate the hearsay rule.
A preexisting physical ailment from which she suffered was exacerbated.
Ford then introduces evidence that two months prior to the trial, Edsel told a Ford engineer that the car in question was black.
Unless it fits within an exemption or exception, it is inadmissible if offered for its truth.
Because the witness has given inconsistent accounts of the same event, the jury may consider his prior statement only as bearing on whether the witness’s trial testimony is unreliable.
In our imaginary case, if the jury members believe that prior to trial Edsel had said the car was black, they may consider this inconsistency in evaluating the credibility of his testimony that the car was green.
If Ford had other admissible evidence sufficient to support a fmding by the trier that the car was black, the judge would not grant a judgment as a matter of law (i.e., a directed verdict).
The judge should grant the motion if the Federal Rules of Evidence apply.
The Federal Rules of Evidence endorse the common law view that prior statements of a witness offered for their truth are hearsay.
In jury trials, a party” may request that the judge instruct the jury regarding the restricted purpose for which evidence of the inconsistency is admitted.
Even if the jury did use the prior statement for its truth, the error would probably be harmless in light of the other evidence that the car was black.
Â§5.3 STATEMENTS THAT ARE NOT HEARSAY 159 Most importantly, the cross-exanriner can question the witness not only about the present testimony from the stand, but also about what the witness said prior to the trial.
The typical hearsay problems of inability to cross-examine the declarant, and inability to view demeanor, are absent when the witness is himself the declarant.”
Rule 403 permits the judge to reject relevant evidence that results in “undue dela,y, waste of time, or the needless presentation of cumulative evidence.”
If the sole purpose of a witness’s prior consistent statement is to bolster her testimony, evidence of the consistent statement should be excluded.
They decided not only to address these two classes of evidence separately, but also to transform them from hearsay (under Rule 801(c)) to nonhearsay (under Rule 801(d)).
Most courts and commentators refer to these two classes of evidence, formally considered hearsay exceptions (at least for the most part), as hearsay exemptions or exclusions.
The idea is Rule 801(d) exempts two classes of evidence (that are hearsay under Rule 801(c)) from the hearsay category or, put otherwise, statutorily redefines them so as to remove them from the basic definition of hearsay.
At the practical level exemptions and exceptions operate identically.
The first category (Rule 801(d)(l)) includes certain prior inconsistent statements made by a testifying witness, as well as certain prior consistent statements made by her.
Within the second category (Rule 801(d)(2)) are statements made by a party as well as statements made by other declarants (such as a party’s agent) associated with a party.
Note that each of the three exempted classes of prior statements by a testifying witness has a basic requirement in common: the declarant must testify at trial and be “subject to cross-examination concerning the prior statement …. ”
Prior Inconsistent Statements A prior inconsistent statement of a testifying witness can be used to impeach his credibility.’
Used, the proponent of the statement offers it to show that on another occasion the witness gave an account that differed from, and is inconsistent with, his testimonial account.
The proponent will argue, the witness is not reliable.
A prior inconsistent statement used only to impeach does not violate the hearsay rule because it is not offered for the truth of the assertion it contains.
At the close of the evidence, defense counsel moves for a directed verdict of acquittal.
Miguel’s statements before the grand jury are nonhearsay (“statutory nonhearsay”).
Most prior statements that are made in a “trial, hearing, or other proceeding, or in a deposition” are made in formal settings in which there is little reason to question whether the circumstances in which the statements were made calls their trustworthiness into question.
But even if the statements at the border patrol proceeding are not admissible to prove a fact, the court will deny the motion for judgment of acquittal-the statements at the grand jury are clearly admissible to prove Rafael’s guilt, and provide enough evidence for a reasonable factf’mder to f’md him guilty.
Prior statements to the same effect add very little (a lie or mistake repeated often does not make it more likely true or correct); and their admission into evidence consumes trial time especially if evidence of the prior consistent statements is provided by other witnesses.
Subsection (C) does not require that a courtroom identification precede evidence of a prior identification.
In United States v. Owens, 21 the Supreme Court addressed Rule 801(d)(l)’s requirement that a witness’s prior statement is exempted from the hearsay rule only if the witness “testifies …
The Supreme Court held that Foster was “subject to cross-examination” as that term is used in Rule 801(d)(l).
The Court recognized that not every witness with a professed lack of memory is equally impeachable, however-thus, in Owens, the witness had suffered a head injury from the attack, which rendered his professed lack of memory quite plausible.
The idea is that the party’s opponent is entitled to introduce evidence of the “admitting” party’s statements (or other communicative actions), although these admissions are in no way conclusive.”
The party against whom evidence of an admission is intro-22.
Â§6.3 PARTY ADMISSIONS: IN GENERAL 171 duced may produce rebuttal evidence that shows, for example, that there was no party admission or that there is a beirign explanation for what was said or done.
Possible Rules of Exclusion for Party Admissions While party admissions are exempt from the hearsay rule, it is a mistake to assume that these admissions are always received into evidence.
Sometimes party admissions are excluded to avoid undue prejudice or because of an overriding social policy such as the exclusion of character evidence.
See al8o FRE 407 (evidence of subsequent remedial measures inadmissible), 409 (evidence of
29 The rule that party admissions are admissible only against the parties who are responsible for them flows from the fact that party admissions, unlike most admissible hearsay statements,30 are not admitted into evidence because they are deemed trustworthy.
If D-1 and D-2 were jointly tried, the jury might improperly consider D-1′s statement as evidence not only of his guilt, but of D-2′s as well.”
Objections by the owner that he did not see the event (no personal or first-hand knowledge) or that he was merely offering an opinion would not preclude evidence of the owner’s admission.
Adoptive Admissions Sometimes a party will, in the words of Rule 80l(d)(2)(B), manifest “an adoption or belief in . . . [the] truth” of someone else’s statement, thereby putting the statement on the same footing as a party’s own statement.
The law of evidence treats a statement adopted by a party as that party’s admission and ex-33.
the admissibility of evidence” and, as such, allocated to the judge (and not the jury) by Federal Rule 104(a).”
The jury may then be instructed that the probative value, if any, that the jury attaches to the evidence depends on whether, upon hearing the statement, a reasonable person in the party’s circumstances would have denied or protested its accuracy if he believed it was untrue.
If the defendant is in custody, and has been given Miranda warnings, his right to remain silent is constitutionally protected” and failure to speak cannot be used against him.
A defendant may waive his right to remain silent.
176 HEARSAY EXEMPTIONS Ch. VI impeached by evidence that he did not report the incident for several weeks.
39 A related but distinct evidentiary problem arises when the prosecution seeks to offer silence as substantive evidence (as opposed to impeachment) when the defendant’s silence occurs before receiving a statement of his Miranda rights, as, for example, before he is actually arrested or immediately thereafter.
The judge cannot conclude there was speaking authority 41.
Alex’s statement is admissible against Draper Chemical as the latter’s party admission.
Even though, traditionally, common law courts were reluctant to fmd speaking authority when agents or employees were engaged primarily to perform “nonspeaking” tasks, a minority of common law courts were breaking with tradition as early as 1975, .. when the Federal Rules of Evidence were fiTSt adopted.
These broad, even breathtaking rules of admissibility are tempered by three important restrictions, all of which track the substantive law of conspiratorial liability.49 Those three requirements are: 1) the declarant’s statement must be intended to further the objectives of the conspiracy; 2) the declarant’s statement must be made while the conspiracy is in operation; and 3) the declarant and the party against whom the statement is offered must be members of the same conspiracy.
The proponent must convince the judge that his evidence meets the requirements listed above.
Invoking Federal Rule 104(a), the judge must decide when a conspiracy begins and ends or if and when a conspirator withdrew from the conspiracy.
The Court declined to decide whether that hearsay 50.
The admissibility of evidence”" and is not bound by the usual exclusionary rules.
are made while the conspiracy is in progress, such statements provide evidence of the conspiracy’s context that cannot be replicated, even if the declarant testifies to the same matters in court ….
It can be argued that it is circular to admit the statement only if there is evidence of conspiracy, but then to allow the statement itself to be the evidence of the conspiracy.
sibility determination, the judge is not bound by rules of admissibility.
But the statement itself is likely to be given considerable weight if it is supported by independent evidence.
A hearsay statement that looks unreliable in isolation can be corroborated by other evidence of conspiracy.
In deciding preliminary questions of fact that govern the admissibility of evidence the court “is not bound by the rules of evidence except those with respect to privileges.”
Rule 804(b)(6) allows into evidence statements of a declarant offered against a party who has wrongfully prevented that declarant from testifYing.
The Rationale Underlying the Exceptions The exceptions to the hearsay rule have been developed over many years.
Most of the exceptions contained in the Federal Rules were fll’St articulated by common law judges; many of these were judicially modified and refined with the passage of time.
Rule 803 contains the first group; Rule 804 contains the second.
Â§ 7.2 Federal Rule 803 Exceptions: In General We have seen that the courtroom availability of a Rule 803 declarant is immaterial-with one minor qualification, the exceptions contained in this rule are available whether or not the declarant testifies.
No single rationale explains or justifies the twenty-three exceptions set out in Rule 803.
Some factors that account for the legislative and judicial recognition of one or more of these exceptions include: (1) A motive for the declarant to speak truthfully; (2) The lapse of only a brief period of time between the declarant’s perception of an event or condition and her statement(s) about the event or condition; (3) A state of mind, attributable to the declarant, that makes it unlikely that she could (or would) contrive a falsehood; (4) Scrutiny of the declarant’s statement(s) by third persons (including the general public) who are in a position to detect falsehoods or inaccuracies; (5) A duty, imposed by law, to speak or report accurately.
If a given statement were both a party admission (Rule 80l(d)(2)) and, say, an excited utterance, which is a Rule 803(2) exception, the proponent may wish to proffer the evidence under Rule 803(2) or under both rules.
The text of the rule states that the declarant must make the statement as she is perceiving the event or condition in question or “immediately thereafter.”
There must be a close temporal nexus between the event (or condition) and the declarant’s descriptive or explanatory statement.
A principal rationale for admitting a declarant’s statement of her present sense impression is that the brief period between the declarant’s perception and her statement allows very little time for devising a fabrication.’
Note that the text of Rule 803(1) confines the content of the declarant’s statement: it must describe or explain the event or condition that the declarant has just perceived.
The judge is free to consider the declarant’s statement itself for whatever probative force it may have on (1) the existence of an event (or oondition), (2) the declarant’s perception of it, and (3) the immediacy with which the declarant spoke.
Excited Utterance: Rule 803(2) Rule 803(2) provides a hearsay exception for the following kind of statement: Excited utterance.
The issue is whether allowing the trier of fact to evaluate the evidence in question is preferable to excluding the evidence and depriving the factfmder of relevant material.
The party who unsuccessfully opposes the admission of hearsay evidence remains free to try to discredit its probative force.
Rule 104(a), the judge, not the jury, decides if the declarant’s statement satisfies the requirements of Rule 803(2).
The prevailing view is that an inability to identify the declarant is not, standing alone, fatal to the applicability of Rule 803(2).
8 courts proceed with more caution when the declarant is anonymous, because it can be difficult for the objector to demonstrate that the declarant lacked first-hand knowledge or to introduce impeaching evidence (such as bias) designed to weaken the probative force of the declarant’s statement.
Â§7,4 PHYSICAL OR MENTAL CONDITION The “Sta;te of Mind” Exception: Rule 803(3) Rule 803(3) provides that the hearsay rule will not exclude: Then existing mental, emotional, or physical condition.
The considerations, coupled with the need to at least consider evidence concerning the testator’s relevant statements, have carved out a special qualification to Federal Rule 803(3)’s general requirement that admissible declarations must refer to an existing mental state.
If we assume, for example, that the proponent of the evidence in illustration (1) needs to prove that the declarant suffered back pain, evidence of the declarant’s statement is relevant and, under Rule 803(3), admissible.
Illustration (5) is a statement about a past state of mind and physical condition-it fails the admissibility requirement of Rule 803(3) that the statement reflect the declarant’s “then existing” state of mind at the time it was made.
It is not within Rule 803(3) if offered to prove the fact remembered or believed (with the only exception being a will case).
Assuming the evidence is offered to prove that Don quit his job at Benchmark and went to work (or intended to go to work) for the declarant, it is hearsay as to both propositions and is not admissible under Rule 803(3).
The frequency with which state of mind is an issue in litigation adds a practical need for this evidence.
The most convincing evidence of a declarant’s state of mind is her own declaration.
At an early date, common-law judges began admitting into evidence a declarant’s statement concerning her own mental (or physical) condition.
200 HEARSAY EXCEPTIONS Ch. VII State of mind, once established, can also serve as circumstantial evidence of behavior.
If a declarant stated in August that he loved his girlfriend, the trier could draw an inference that he loved her in July and September-that’s a question of probative value.
If the declarant makes a statement in August, “I fell in love with my girlfriend last month” this would not be admissible under the state of mind exception, because it is not a statement about the declarant’s current state of mind.
If X says “I’m going out with Y tonight” and the jury is allowed to hear the entire statement, it is difficult, to say the least, for the jury to ignore the portion of the statement referring to Y’s participation.
On firmer ground is the requirement enforced by some courts that there be other (corroborative) evidence of Y’s conduct.
As in Illustration (2), the jury now has before it evidence of the declarant’s ( Larry’s) future conduct (his declaration) and independent evidence that is sufficient to uphold a jury finding of Angelo’s conduct.”
The only relevant purpose of the evidence is to show what Y did and for this purpose the wife’s statement is inadmissible hearsay.
It is inadmissible hearsay.
The statement in Illustration (1) should be inadmissible, and most courts would so hold.
There is no doubt that Rule 803(3) includes the declarant’s statement of what he intends to do; difficulties arise only when the declarant’s assertion includes what he intends to do in association with another.
There remained two possibilities for upholding the trial court’s decision to admit Mrs. Shepard’s statements. First, admission of this evidence might be sustained on the ground that her statements had prohative value to rebut defense evidence that Mrs. Shepard was depressed and had suicidal intentions.
Even the legislative history of Rule 803(3) contains conflicting indications of whether that subsection admits a declarant’s statement as proof that he intended to participate in certain activity with a designated person and he did.
) are sometimes admitted as evidence of the future conduct of both participants.
Many statements fitting comfortably within Rule 803(3) are not about conduct, but rather describe a physical or mental condition that is relevant to an issue in the case being tried.
As we observed in Chapter V, a declarant’s statement sometimes permits the trier to infer the existence of the relevant mental state without the necessity of accepting her statement as true.
Federal Rule 803(4) Rule 803(4) excepts from the hearsay rule: Statements made for purposes of medical diagnosis or treatment.
210 HEARSAY EXCEPTIONS Ch. VII to prove what the declarant’s words were, and she then invokes Rule 803(4) in order to permit the trier to use the declarant’s statement for its truth.
We require that the witness to the hearsay statement take the stand and testify as to what the declarant (e.g., the patient) said.
Rule 805 states that “[h]ear883′ within hearsay is not excluded under the hearsay rule if each part of the combined statements confonns with an exception to the hearsay rule provided in these rules.”
The judges limited the scope of the hearsay exception for statements to physicians and other medical personnel.
The federal drafters took the pragmatic view that there was little or no practical gain in attempting to distinguish between statements for purposes of treatment and those for purposes of diagnosis in anticipation of litigation.
If one or more of these techniques is effective, then the witness’s testimony (based on her refreshed recollection) constitutes the evidence for the jury’s consideration.
Federal Rule 803(5) Rule 803(5) removes from the hearsay ban: Recorded recollection.
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge
If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
The recordation itself is not received into evidence as an exhibit, unless “offered by an adverse party.”
The intent of the latter provision is to reduce the chance that the jury will exaggerate the probative force of the recordation, because exhibits are not only examined by the jury when received in evidence, but also often carried to the jury room when the jury retires to deliberate.
(The opponent has the option of offering the recordation into evidence, which he would ordinarily decline to do unless he thought the writing or recordation was inaccurate and that this inaccuracy would be highlighted by the jury’s further examination.)
In order to have the recordation admitted, it is necessary to link the exception for recorded recollection (to show that Bystander made the statement) with another hearsay exception (or exemption) to allow Bystander’s statement in for its truth.
216 HEARSAY EXCEPTIONS Ch. VII The second, and closing, comment about the “recorded recollection” exception concerns the occasional difficulty of providing evidence sufficient to allow the trier to conclude that the witness’s earlier recordation reflected his “knowledge correctly.”
Each of the exceptions requires that the declarant’s hearsay statements be contained in a writing or other recordation that can be accessed by persons in addition to those who created it.
The declarant is usually disinterested insofar as the content of his recordation is concerned and he typically is motivated to be careful and accurate because unreliable entries may adversely affect his job performance.
” The Rule requires that the entry is routine and not one that is made for some special, nonrecurring purpose-perhaps motivated by a desire to create evidence.
There is a hearsay objection to each of the proffered items of evidence.
The judge uniformly rules for the proponent and admits each item of evidence in question.
Assume that the written statements below are accompanied by foundational evidence showing that they were routinely made in the regular course of business.
Success in admitting the evidence in Illustration (2) depends upon linking Officer Blue’s duty to record with Bystander’s excited utterance.
Federal Rule 803(1) states that the declarant’s statement “describing or explaining an event or condition” must be made “while the declarant was perceiving the event or condition, or immediately thereafter.
Medical Diagnoses in Business Records Prior to the widespread adoption of the Federal Rules of Evidence, some courts were very skeptical of a hospital (business) record that contained a medical diagnosis.
The foundation includes evidence that the record (or entry) in question was “kept in the course of regularly conducted business activity, and …
Federal Rule 803(7) makes it clear that “[e]vidence that a matter is not included” in a business record that would normally record it, is admissible “to prove the nonoccurrence or nonexistence of the matter …. ” Again as in the case of Rule 803(6), the judge is empowered to exclude this evidence if she finds it untrustworthy.
Observe that the hearsay exception contained in Rule 803(7) is probably superfluous.
A non-routine entry by a government geologist about the composition, texture, or color of certain volcanic ash would be a public-record entry, even if the recordation were not made soon after the official’s observations.
Public Records: Rule 803(8) The Federal Rules of Evidence contain a number of provisions governing the admissibility of public documents.
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the
As most courts have wisely held,” subsection (B) excepts from the hearsay rule (and makes admissible) reports by police and other law enforcement 63.
The accused would be able, under this subsection, to admit a law enforcement report concluding that the accused’s fingerprints were not identified at the scene of the crime.
Most courts have construed Rule 803(8) (B) and (C) flexibly: the exclusionary language covers only those police-generated reports that are prepared under adversarial circumstances, where there is a risk of manipulation by authorities bent on convicting a particular criminal defendant.
Under the public records exception contained in Rule 803(8)(C) (investigative reports), it is not necessary that the person who is the source of information contained in the report be speaking pursuant to a public (or business) duty.
The theory is that an investigating officer has expertise in the area in which she conducts her investigation, and can reliably evaluate the probable accuracy of declarations by witnesses or other persons with knowledge.
See, e.g., United States v. PenaGutierrez, 222 F.3d 1080 (9th Cir. 2000) (Trial Court erred in admitting into evidence “the on-the-scene investigative report of a crime by an INS official whose perceptions might be clouded and untrustworthy”); United States v. Bohrer, 807 F.2d 159 (lOth Cir. 1986) (an IRS contact card was excluded under Rule 803(8) because it was prepared under adversarial circumstances and because information included therein was subjective rather than ministerial in nature subject to manipulation).
At trial, the defendant offers an investigative report prepared by a JAG officer who conducted an exhaustive post-accident investigation of the crash.
Rule 803(8) itself provides protection against the admission of speculative or unsubstantiated hearsay assertions.
Many recorded hearsay declarations will meet the conditions of both Rule 803(6) and Rule 803(8).
Mter all, a general governing principle of evidence holds that if evidence is admissible under the theory or rule cited by the proponent, it will not be rejected simply because it would be inadmissible if offered under another theory or pursuant to another evidentiary rule.
(2) In a prosecution for a conspiracy to violate federal firearms laws, the government needs to prove that certain weapons were transported to Northern Ireland.
Rule 803(5), by its terms, requires that the author of the “recorded recollection” testify and be subject to crossexamination.
The difference has persuaded most courts that the protective provisions of Rule 803(8) do not prohibit the introduction into evidence of a police report that meets the requirements of past recollection recorded.
The purpose of the evidence is to establish the exact content of the accused’s testimony and also, to establish that the accused had been sworn.
illustration (4) raises the issue of whether a court reporter is included in the term “law enforcement personnel” which is used in Rule 803(8)(B) to generally identify those persons who enforce the criminal laws.
Â§7.7 BUSINESS AND PUBLIC RECORDS 233 clerical or ministerial role and should not be considered an officer or employee charged with enforcing the criminal laws.”
Rule 803(10) may be invoked to prove, first, the absence of a public report or, second, the “nonoccurrence or nonexistence of a matter” that would routinely be filed and preserved in a public office.
If the custodian or other appropriate person were to testify that her diligent research failed to locate the putative record in question, no hearsay problem arises.
Rule 803(16) excepts from the hearsay rule: Statements in Ancient Documents.
Learned Treaiises Generally speaking, at common law an expert witness could be impeached by showing that an author, also an expert in the witness’s field, held professional views that contradicted those of 65.
Authentication requires only that there be foundational evidence sufficient to permit a reasonable trier to conclude that the proffered document is genuine.
The Federal Rules of Evidence go a step further in Rule 803(18) by creating a hearsay exception for statements in a learned treatise or other professional or scholarly publication, [t]o the extent [the work is] called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination . . . [provided the work is] established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.
Statements in a learned treatise, journal, pamphlet, or similar publication that qualify under Rule 803(18) are read into evidence, but are not received as exhibits.
The judge must be persuaded by whatever foundational evidence is presented that the proffered work is “a reliable authority” before a proponent will be allowed to invoke Rule 803(18).
As a practical matter, the rule ensures that the trier of fact will have the benefit of a knowledgeable expert’s view as to the validity of the textual passage in question and, just as importantly, how those passages bear upon the issue(s) in the case before the court.
236 HEARSAY EXCEPTIONS Ch. VII The exception for learned treatises is used most often to present textual evidence that contradicts the testimony of an opposing expert.
Judgment of a Criminal Conviction: Rule 803(22) Rule 803(22) provides a hearsay exception for the following: Judgment of Previous Conviction.
Rule 803(22) is concerned with using a prior criminal conviction in a subsequent criminal or civil trial as evidence.
The hearsay exception does not address issue preclusion, which is not properly included within the law of evidence, but rather is part of the body of law generally known as the “law of judgments.”
Recall that the essence of Rule 803(22) is that it permits the introduction into evidence of a prior felony-grade conviction “to prove any fact essential to sustain the judgment.”
Imagine a civil suit in which A’s executor (the plaintiff) claims that the defendant B (and not C) negligently shot and killed A while the three of them were hunting.
The previous criminal judgment was against a person “other than the accused” in the present trial; the evidence is not offered for the purpose of impeaching the credibility of a witness; and, more importantly, the present accused is unable to confront and cross-68.
Other Miscellaneous Rule 803 Exceptions: A Sample We have addressed the Rule 803 exceptions most often studied in evidence courses and most often discussed in the reported cases.
Rule 803(9) excepts from the hearsay rule “records or data compilations” that contain statistics pertaining to “births, fetal deaths, deaths, or marriages.
The combination of a disinterested source and public reliance justify this exception to the hearsay rule.
The reliability (probative force) of this evidence is fmally determined by the trier of fact.
Rule 803(19) is one of several hearsay exceptions contained in Rule 803 that allow evidence of reputation as an exception to the hearsay rule.”
A witness who testifl.es concerning this person’s reputation must have personal knowledge of the reputation, but need not have personal knowledge of the relationship in question.
) Â§ 7.9 Rule 804 Exceptions-Requiring Unavailability of the Declarant We have seen that Rule 803 exceptions apply whether or not the declarant is available to testify.

Principles of Evidence – Part 1

Daryl — Sun, 07 Aug 2011 16:44:31 +0000

The ability to recognize, develop, and preserve admissible evidence is essential to becoming a competent lawyer.
The received wisdom is that juries must be shielded from evidence that would be prejudicial or highly inflammatory in order to decrease the likelihood of a verdict prompted by momentary passions or erroneous inferences.
(Although the rules of evidence apply in bench (i.e., judge) trials, many of them are not strictly enforced and appellate reversals of evidentiary rulings in bench trials are rare.’
) Some of the rules of evidence are also designed to expedite the trial, for example, by forbidding the “‘ The authors express their thanks to Bevin Butler, Fordham ’09, for her excellent wurk on this Fifth Edition.
The judJl” is rarely reversed for considering 41inadmissible” evidence because her professional training prepares her to evaluate the evidence accurately, taking full account uf possible defects.
Her refusal to consider evidence that was admissible may lead to a reversal.
Tho Federal Rules of Evidence are cited hereinafter as “FRE”.
Today, the study of evidence focuses on the Federal Rules of Evidence (FRE) which apply not only in the federal courts, but also serve as a model for state codes of evidence.
Until 1975, the year in which the Federal Rules of Evidence took effect in the federal courts, the vast bulk of evidence law was contained in state and federal judicial decisions.
Over the next quarter century as more and more states adopted some version of the Federal Rules, a major change took place: the law of evidence was largely transformed from a common law to a code-based subject.
As originally presented to Congress, the Federal Rules had been drafted and were to have been promulgated as judicial rules of court, prescribed by the United States Supreme Court for the governance of trials in lower federal courts.
It intervened by passing the initial body of the Federal Rules of Evidence as a statute, containing not only many of the rules proposed by the Supreme Court, but also the modifications and new rules approved by the House and Senate.
8 Today, amendments to the Rules of Evidence are proposed initially by the Judicial Conference Advisory
The rulemaking process is not the only means of enacting an Evidence Rule.
Congress occasionally bypasses the judicial rulemaking process and enacts a statute that imposes upon the lower federal courts a new or modified rule of evidence.
The historical and contemporary background of the Federal Rules of Evidence consists of both congressional legislative history and the commentary generated by the Judicial Conference.’
The current ststute granting power to the United States Supreme Court to promulgate rules of evidence for use in the federal courts is 28 U.S.C.A. Â§ 2072.
The text refers periodically to historical materials which, among other things, indicate the intention of the drafters and trace the changes made in a particular rule from its initial draft to its fmal passage.
The adversarial system is driven by the parties.
Each litigant, and not the judge, largely determines what evidence he will present at trial.
The parties are responsible for gathering and proffering evidence; the judge merely decides if a given item of evidence is admissible when a party-opponent objects that the proffered evidence violates an evidentiary rule.
The success of her objection will depend upon whether the judge determines that an exclusionary rule dictates rejection of the proffered evidence.
A lawYer’s skill in presenting and objecting to evidence will often determine the success of his client’s case.
The rule prevents the cross-examiner from destroying the continuity of the direct examiner’s presentation of evidence by interposing “extrinsic” rebuttal evidence.
The term “offer of proor’ is used more narrowly to refer to the dual showing a proponent must make when the admissibility of her evidence is challenged by objection.
Even if the judge sustains the opponent’s objection, counsel may challenge the judge’s ruling on appeal should she (the proponent of the excluded evidence) lose her case at trial.
In circumstances where the evidentiary defect is not apparent until after a response has been made, a motion to “strike the evidence” is the proper remedy.
As we shall see below, the specific rules governing offers and objections favor the judge and operate against the attorney who fails to take appropriate, timely action.
When counsel objects to the admission of her opponent’s evidence, the judge must rule.
The judge does not err if he rejects an offer of proof that is faulty or that by its terms indicates that the proffered evidence is inadmissible.
The fact that a different or revised offer would have made the evidence admissible is beside the point.
The fact that a different, proper objection would have resulted in exclusion of the evidence is, again, of no consequence on appeal.
Peter offers evidence of two other accidents during the month preceding Peter’s accident in which other golfers were injured while using the defendant’s carts.
Peter (through his attorney) states that the purpose of the evidence is “to show that the defendant has been negligent in maintaining its carts on other occasions, which supports the proposition that the defendant was negligent regarding his (Peter’s) accident.”
The defendant objects on the ground that evidence of other separate accidents cannot be admitted to prove negligence.
The judge sustains the objection and excludes the proffered evidence.
The parties can anticipate what offers and objections are likely to be forthcoming at trial.
Â§2.4 EXAMUITNG~SSES: GENERAL RULES 11 Â§ 2.4 Examining Witnesses: General Rules The Form of Questions In this section, we examine a cluster of rules that govern the interrogation of witnesses.
As a practical matter leading questions may be the only effective method of eliciting the testimony of a young witness.
As developed below in greater detail, leading questions may be used during direct examination to interrogak a hostile witness.
The cross-examiner can question a hostile witness on the examiner’s own terms, thereby minimizing the negative impact of the witness’s testimony.
The direct examiner may need to call a hostile witness, or the cross-examiner may have the opportunity to interrogate a friendly witness.
(An attorney’s choice of witnesses is, after all, limited to those witnesses who have personal knowledge of the events to which they testify.)
Federal Rule 611 and Leading Questions In administering the rules governing leading questions, the trial judge will be guided by the following provisions of Federal Rule of Evidence 611: (a) Control by Court.
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.
The general rule is that the sponsoring counsel can, from the outset, treat the adverse party as a hostile witness and conduct his examination by leading questions.
Scope of Cross-Examination Another rule governing the interrogation of witnesses prescribes the scope of cross-examination.
Federal Rule 611(b) In Rule 611(b), the Federal Rules of Evidence adopt the (majority) American Rule: (b) Scope of Cross-Examination.
The rationale of the American Rule is that the party who calls the witness ordinarily should be allowed its own order of proof, and that cross-examination beyond the subject matter of direct would be an unwarranted disruption.
The rule prohibiting the cross-examiner’s introduction of extrinsic evidence during her opponent’s presentation phase is designed to facilitate an orderly evidentiary presentation without major digressions and interruptions.
The Lay Opinion Rule We conclude this section with a brief discussion of the “opinion rule” which purportedly forbids a lay witness from giving opinion testimony.
(A quite different rule applies to expert witnesses.)â€¢ The common law rule on lay witness testimony confined the witness to a statement of “facts.”
Note that the common law opinion rule is based on a tacit assumption-namely, that once the jury has heard the “bare facts” from the witness, it is in as good a position as the witness to draw reasonable inferences.
The modem rule on lay opinion, embodied in Federal Rule 701, recognizes that lay opinions can be helpful to the jury in some instances.
Â§2.4 EXAMUITNG~SSES: GENERAL RULES 17 pointless arguments made under common law as to whether the lay witness was testifying to an “opinion” or a “fact.
Federal Rule 701 Rule 701 rejects any rigid rule that prohibits lay witnesses from giving opinions.
Rule 701 properly recognizes that a lay witness’s opinion can be helpful to the factfmder more helpful at times than the raw data on which the opinion is based.
The foregoing testimonial samples are illustrations of allowable lay opinion because, in the words of Federal Rule 701, each is based on “the perception of the witness” and each is “helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue,” Rule 701 is judicially administered by asking the simple question whether the proffered form of testimony is helpful.
It is important to note that Rule 701 governs only the testimony of a lay witness.
While a lay witness could testify that a substance on the victim’s clothing appeared to be blood, he could not testify that blood loss was the cause of death.
Â§ 2,5 EXAMINING WITNESSES: WHEN MEMORY FAILS 19 These requirements should not be evaded by calling a “lay” witness who will really be oonsidered an expert by the factfinder.
The important restriction is that the object or reminder, whatever its nature, serves only the purpose of stimulating the witness’s recall: the object or device used to refresh recollection is not an independent source of evidence.
If the judge rules that the witness’s recollection has not been restored, then of oourse her testimony cannot constitute the evidence received.
The cross-examiner may introduce into evidence the item used to refresh recollection.
The limited purpose of this evidence is to allow the jury to compare it with the witness’s testimony.
Federal Rule 612 Rule 612 of the Federal Rules of Evidence is pertinent to the present discussion.
The Jencks Act, 18 U.S.C.A. Â§ 3500 (1970), gives the accused the right to inspect written or recorded statements of any prosecution witness if the statement boo been adopted by the witness or if the statement is essentially a verbatim recording of the witness’s prior oral statement.
The opponent’s claim that any privilege (or immunity) is waived-a claim that is uniformly upheld when memory is refreshed during a witness’s testimony-is not necessarily compelling.
Hearsay evidence is generally excluded (there are many exceptions) because the cross-examiner cannot test the credibility of the out-of-court speaker (the “declarant”).
The declarant’s statements are revealed to the trier of fact either through the testimony of a witness who heard them or by the introduction of a recordation, often a writing, that contains the declarations.
He can give testimony vouching for the accuracy of the entry even though he cannot recall the event it describes.
A “recorded recollection” escapes the hearsay bar if the witness on the stand can testify that the statements in the prior recording were accurate when made because he made or verified them when his memory was fresh.
The fact that the writing or other recording is admitted into evidence simply means that the trier may consider it along with all of the other evidence in the case.
All trials have conflicting evidence and, ultimately, the trier must decide which portions of the evidence to believe.
The rationale for such a division is clear: the judge, through training and experience, is particularly qualified to resolve legal questions, while the jurors, who bring to the courtroom the common experience of the community, are equipped to settle factual disputes.
The first qualification to this general statement of functions is that the jury discharges its fact-fmding role only in those cases where the state of the evidence reasonably justifies a fmding in favor of either party.
24 THE FRAMEWORK Ch. n the judge in those instances where the evidence reasonably supports only one factual conclusion.”
For example, in determining whether the court has personal jurisdiction over the defendant, the judge resolves any factual dispute that arises with respect to the defendant’s activities or “contacts” with the forum state.
The judge also settles factual disputes that may arise in connection with discovery proceedings.
The jury always applies the law to the facts unless the defendant waives his right to jury trial.
Even after a jury trial commences, the judge monitors the evidence and, removes from jury consideration any factual determinations that in light of the evidence before the jury could rationally be resolved in only one way.
Judge’s Fact-Finding Role in Applying the Rules of Evidence The judge also plays an important fact-finding role in administering the rules of evidence.
Rules of evidence often require proof of a foundational fact before evidence can be admitted.
And if the jury is told that the reason for determining the foundational fact is so that evidence can be heard, then they are likely to find the foundational fact in order to be able to hear the evidence.
For example, suppose the plaintiff offers evidence of a statement made by one of the corporate defendant’s employees to defense counsel.
The plaintiff’s lawYer argues that Investigator’s testimony falls within an exception to the hearsay rule that allows into evidence “excited utterances. ”
18 Out of the jury’s hearing, plaintiff presents evidence indicating that Peter spoke while in a state of excitement and shock-a state that was produced by witnessing the accident and being jolted and injured himself.
Defense counsel produces rebuttal evidence that when Peter made his statements, fifteen minutes after the accident, he had regained his composure.
The rule of evidence governing this hypothetical permits the introduction of hearsay statements that relate to the event being litigated, if the person (the “declarant”) making the statements 16.
As we have observed, these preliminary facts are often closely linked to the very evidence in dispute, so that deciding the preliminary facts requires consideration of the disputed evidence.
Consider, for example, the two rules of evidence that, respectively, admit dying declarations and excited utterances if certain conditions-that is, certain preliminary factsexist.
Even if the evidence turned out to be inadmissible, the jury would be likely to rely on it.
Federal Rule 1 04( a) Rule 104 of the Federal Rules of Evidence is captioned ”
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. . . . In making its determination it [the court] is not bound by the rules of evidence except those with respect to privileges.
28 THE FRAMEWORK Ch. n reason for the creation of rules of evidence is the existence of the lay jury; we also noted that the rules are not strictly enforced in trials to the bench.19 Because the judge presumably understands the possible deficiencies in “inadmissible” evidence, she can take account of these weaknesses when she is deternrining preliminary facts.
We trust the judge to make a reliable determination of preliminary facts, even though she considers evidence that is technically “inadmissible.”
The standard of proof that the judge must apply in determining preliminary matters of admissibility is a preponderance of the evidence.
In our Illustration, the judge will not admit the airplane passenger’s hearsay statement as an excited utterance unless the proponent of the statement proves it more likely than not that the passenger was under the influence of the startling event at the time he made the statement.
There are at least two possibilities for gaining admission of evidence during the trial without opposition: first, the evidence in question may be so clearly admissible that the opposing attomey is unlikely to contest its admission; second, the evidence may bear on facts that are relatively unimportant making a contest by the opponent unlikely.
For example, counsel might invoke Rule 36 of the Federal Rules of Civil Procedure (goveming requests for admissions) and request that her opponent 19.
The jury is so bound and the judge will instruct the jury to accept the judicially noticed fact as conclusive.
Under Federal Rule of Evidence 20l(g), a fact that is judicially noticed is conclusive except in criminal jury trials.
Legislative Facts Federal Rule of Evidence 201 deals only with judicial notice of “adjudicative facts” which are the facts that collectively make up the litigated event-that is, those facts that deal with the contested
The determinations or assumptions often influence the way a court interprets a statute or crafts a judge-made rule of law.
3.6-3 Evidence of Habit Distinguished from Evidence of Character.
Because the fundamental principle of relevance pervades the law of evidence, it serves as both the dominant and unifying theme.
Drawing upon an observation of reformer and philosopher Jeremy Bentham, we can say that the effect of relevant evidence “when presented to the mind, is to produce a persuasion concerning the existence of some …
Evidence that V, the victim of a robbery, consumed four martinis during the hour before he was robbed tends to show he was intoxicated at the time he was victimized.
On the assumptions the degree of V’s intoxication is irrelevant to D’s guilt.
The law rejects irrelevant evidence for several reasons.
The exclusion of irrelevant evidence advances the goal of efficiency: it is wasteful to receive evidence that has no proper bearing on the case.
The exclusion of irrelevant evidence advances the objective of unbiased factfinding within the requirements of the substantive law: although some evidence does not logically assist the trier of fact in resolving pertinent factual issues, it may pose a risk that the trier will use that evidence inappropriately.
Definition of Relevant Evidence “Relevant evidence” means evidence having 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.
The evidence, standing alone, does not make it more probable than not that the defendant committed the crime.
But it is a piece of evidence, the existence of which makes it somewhat more likely that the defendant committed the crime than if there were no such evidence.
It is relevant.
To summarize: evidence is relevant only if it, (1) tends to prove or disprove a proposition of fact that, (2) is of consequence under the substantive law that applies to the case.
Bear in mind that even if evidence strongly supports a factual proposition, the judge (on objection) will reject the evidence unless the proposition is “of consequence” to the lawsuit in which the evidence is offered.
Evidence is consequential (or, under the older common law terminology, “material”)’ only if it tends to establish the existence or nonexistence of an element of the controlling substantive law.
Suppose that in a suit filed by Prospero against Duncan for assault and battery, Duncan offers evidence that he mistakenly thought Prospero was another person, Puck.
The evidence should be rejected if the factual proposition to which it is directed-mistaken identity-is of no legal consequence under the substantive law governing the case.
The plaintiff’s complaint (or the prosecutor’s indictment or information) determines the theory of recovery (or of prosecution) and invokes the substantive law 3. uhnmaterial” historically meant that the proffered evidence bore no relationship to the legal issues raised by the substantive law made applicable by the pleadings, although the term sometimes was used indiscriminately to refer merely to a lack of sufficient probative force between the evidence proffered and a consequential proposition.
Note that if mistaken identity were consequential under the law governing damages, then evidence of mistake could be considered for the purpose nf determining the amount of the plaintiff’s recovery.
Evidence of mistake would be consequential, not to excuse liability, but to the assessment of the appropriate award
For example, a plamtifl’s complaint alleging a defendant’s breach of warranty invokes the substantive law of warranty and not, for example, the law of negligence.
A defendant in a civil case, for instance, may not only deny certam of the plaintiff’s allegations, but may also offer defenses such as contributory negligence or breach of warranty invoking the substantive law pertaming to these defenses.
The point is that both the plaintift’s (or prosecutor’s) legal theory and the defendant’s (or accused’s) legal theory affect the legal rules that are “in play” and affect which facts will be consequential.
Three items of evidence are proffered: (1) The office building is one story taller than permitted by the applicable zoning regulations; (2) The lobby, once pamted pink, was recently repamted yellow; (3) The lobby was dimly lit.
Because the evidence about lighting is offered to show that there was an unsafe condition in the lobby, it is consequential. ”
The reason is that this kind of background evidence aids the jury’s understanding of the evidence that is “relevant.”
And evidence about a witness may sometimes bear strongly on a consequential fact and easily satisfy the definition of relevance.
In the language of Rule 401, evidence that the witness has abnormal hearing or vision has a tendency to reduce the trier’s belief in the “existence of . . . [those] facts of consequence” to which the witness testifies.
Evidence directed to the credibility of a witness bears on the trier’s assessment of the truth or accuracy of her account of consequential facts, and is relevant because it has a tendency to make such facts more or less probable.
Clearly the evidence does not establish the accused’s guilt.
A single item of evidence is relevant if it has any tendency to increase (or decrease) the probability of a oonsequential factual proposition.
The question is whether the probability that the accused committed the murder for which he is on trial is to some degree increased by evidence that he attempted to escape.
Put, it may at least be argued that the evidence is relevant and it should be considered along with other circumstantial evidence (such as fingerprints, blood stains, and the like) in determining whether the defendant is guilty beyond a reasonable doubt.
The judge simply determines whether a reasonable jury oould rationally conclude that the proffered evidence of attempted escape tended to make a consequential fact (D murdered V-1) more or less probable.’
The touchstone of relevance, at least in the f’ll’st sense-probative value-is the presence of a logical relationship between the evidence and the ultimate proposition to which it is directed.
The trier of fact ultimately determines the probative force of even technical or “scientific” evidence.
As you will see the risk of prejudice is the particular point judge may exclude relevant evidence if of concern in the hypothetical above.
The evidence described in (b) has greater probative force than the evidence described in (a).
The evidence shows a consistent pattern of reserving grazing rights.
The example illustrates the simple proposition that the probative force of evidence directed toward a consequential fact ( the existence of a grazing reservation) can be increased or decreased by changing the evidence offered.
Assume that Portia has available the evidence described in (a) above, which, as we have seen, has only weak probative value in the suit against Diana.
If the lease to Duncan, described in (a) above, was during or near the taxable year that is the subject of dispute between Portia and the IRS, evidence of the lease has considerable probative force.
Counsel can affect the probative force of evidence either by changing the evidence proffered or by changing the consequential proposition to which it is directed.
There are many such exclusionary provisions, including the rule against hearsay evidence, and many of these provisions (particularly those found in the Federal Rules themselves) are quite specific.
For example, evidence that one party to a suit offered to settle the case is generally inadmissible.’
Â§3.2 EXCLUSIONARY COUNTERWEIGHTS 41 who offers a compromise should not be penalized (by evidence that he did not stand firmly behind his initial claim or defense) for his attempt to resolve the dispute.
The law favors compromise agreements and the law of evidence is crafted to encourage offers of compromise.
In addition to numerous, specffic exclusionary rules, the Federal Rules contain a general exclusionary rule that applies broadly to almost all proffered evidence.
The rule, embodied in Federal Rule 403,10 contains a balancing test.
As noted above, Rule 403 provides a balancing test that allows the judge to exclude relevant evidence if “its probative value is substantially outweighed” by one or more of the counterweights of prejudice, confusion, or wastefulness.
The test tips the scales in favor of admissibility: only if the “probative value is substantially outweighed” by one or more of the countervailing factors is the judge permitted to exclude relevant evidence.
Because the balancing test is necessarily an inexact one that takes into account the 10.
Her determinations under Rule 403 will not be reversed by an appellate court unless she has clearly abused that discretion.11 The Effect of a Proffered Stipulation on Rule 403 Balancing Old Chief v. United States” is perhaps the most notable case construing Rule 403.
(Counsel was concerned about the jury’s adverse reaction when it learned that the prior offense was a serious criminal assault.)13 When the prosecutor refused to accept or join in this stipulation, the trial judge permitted him to produce evidence showing the name and nature of the prior conviction.
The central question before the United States Supreme Court was whether the trial judge abused his discretion by refusing the accused’s offer and permitting instead the prosecutor’s evidence of the prior offense.
Noting that the relevance of an item of evidence does not turn upon whether it 11.
The defense W1IS concerned that, because Old Chief was charged with assault in the present case, the jury would use the prior assault conviction as evidence of propensity.
Propensity evidence is generally excluded under Rule 404, but evidence of specific acts may be admitted to prove knowledge and other matters.
When a party concedes a consequential fact that his opponent’s proffered evidence tends to prove, this concession does not render the evidence irrelevant.
The concession does suggest that the judge should often exclude the evidence under Rule 403 on grounds such as prejudice or wastefulness.
In a wide-ranging discussion, the Court approved and elaborated upon the general principle that a prosecutor normally has the right to choose the evidence with which he wishes to prove his case.15 Ordinarily an accused has no right to block the prosecutor’s evidence by offering admissions or stipulations.
The prosecutor’s right of evidentiary choice helps ensure that the jury receives the evidence it is likely to expect—and counters against a negative inference that may be drawn when a jury is told what the facts are rather than presented with evidence of those facts.
The latitude is restricted when, as one or more of the counterweights contained in Rule 403 substantially outweighs the probative value of the proffered evidence.
In Old Chief there was a substantial risk that the jury would not confine its use of evidence disclosing the exact prior offense to the permissible issue of Old Chief’s status.
The jury might have used evidence of the prior conviction to reason that he had a propensity to commit violent crimes such as assault with a dangerous weapon.
The dictum, which dominates the opinion, is decidedly favorable to the prosecution and, by extension, supportive of the general principle that parties may usually select the evidence they wish to present.
In a narrowly tailored ruling, the Court held that the trial judge abused his discretion by permitting the prosecutor to reject the accused’s offer (to stipulate his prior felony conviction) and to introduce instead evidence revealing the name and nature of the prior offense.
The key to the holding is that the only legitimate use of evidence pertaining to the prior conviction was to establish the accused’s status as a felon prohibited from possessing a firearm.
Â§3.2 EXCLUSIONARY COUNTERWEIGHTS 45 The Meaning of “Prejudice” Note that Rule 403′s reference to “unfmr prejudice” does not refer to evidence that simply damages the opponent’s case.
Evidence favorable to one side is usually damaging to the opponent-but that doesn’t make it “prejudicial” within the meaning of Rule 403.
The rule refers to prejudice that is likely to result from the trier’s misuse of the evidence-in other words, the rule is concerned only with evidence that is likely to distort the trier’s proper evaluation.
In Old Chief, there was a risk that evidence of the prior convictions, introduced for the sole legitimate purpose of establishing the accused’s status, would be used improperly by the jury.
The Court noted, the contextual approach endorsed in Old Chief does not mean that the accused can block relevant evidence by simply conceding the point to which it is directed.
Other Negative Factors Considered Under Rule 403 While the Old Chief case focuses primarily on prejudice as a counterweight to probative value, there are other counterweights contained in Federal Rule 403.
Under the terms of Rule 403, a court may also exclude evidence on the ground that it is needlessly cumulative.
The emphasis is on the term “needlessly,” as parties may often choose to emphasize a particularly crucial fact by introducing more than one item of evidence to support it.
Â§ 3.3 Evidentiary Foundations Rules of evidence require evidentiary foundations or predicates-that is, evidentiary steps that precede the introduction of testimonial, real, or demonstrative proof.
Consider, for example, the foundational requirement of Federal Rule 602, which states in part: 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 ….
Observe that in the instance the judge acts in a supervisory or “screening” capacity: his only role is to ensure that the jury has before it sufficient evidence to reasonably conclude that the witness saw or heard the occurrence in question.
The assumption is that if the jury concludes that the witness lacks personal knowledge, it will ignore her testimony.
Many rules of evidence call upon the judge to determine the preliminary or foundational facts.
In the instances, the judge does not merely screen the evidence; instead, the judge makes the necessary factual determination.
In administering this rule of evidence the judge determines the preliminary (foundational) facts.
If the judge admits the recordation into evidence, the jury decides what probative weight to give it.
Federal Rule of Evidence 702 permits testimony by an expert if her knowledge will “assist the trier of fact” and if she is qualified “by knowledge, skill, experience, training, or education” to address 22.
The judge only screens the evidence to ensure that it is adequate to support the jury’s determination.
Under FRE 901, whenever a laWYer offers evidence that she asserts is genuine (e.g., a telephone call from X to Y), she must upon objection provide a foundation sufficient for a reasonable trier of fact to conclude that the evidence is authentic-that it is what the proponent claims it to be.
If an item of evidence is not authentic, it is not relevant.
The law of evidence is more circumspect for it operates in a milieu of conflict with a lay jury often acting as the factfinder.
The authentication requirement would also be met by evidence that the caller revealed information likely to be known only by Alena Leitner.
Authentication could be achieved by evidence that Alena Leitner frequently stutters and so did the caller.
You should think of authentication as simply the process of providing evidentiary confirmation that a proffered item of evidence is what it appears to be.
In a bench trial, after the judge hears evidence supporting authentication and any contrary evidence introduced by the opponent, she decides if the proffered evidence (to which authenticating evidence is addressed) is genuine.
Â§3.3 EVIDENTIARY FOUNDATIONS 51 simply screens the authenticating evidence in order to deternrine whether the evidence supporting authentication, if believed by the jury, is sufficient to allow it rationally to conclude that the proffered evidence is genuine.”
Note that in all of the examples above, authentication is achieved by the introduction of evidence extrinsic to the proffered document.
The first pattern involves the introduction of evidence extrinsic to the proffered item~dence that tends to confmn that the item is authentic.
The rule is sometimes very useful, because fmding authenticating evidence for an “ancient” document may prove difficult.
FRE 901(b)(4) permits authenti-tin.ctive features, taken in conjunction cation by evidence that shows udistinc-with circumstances.”
Satisfaction of the ancient documents rule provides sufficient evidence to support a jury finding of genuineness.
Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
The illustration is within the pattern-one category because the proponent of an item of evidence must produce extrinsic evidence that shows the accuracy of the process or system that produced the proffered evidence.
Suppose, for example, a trucking company wanted to introduce evidence in the form of a computer printout that displayed the average monthly cost of service, maintenance, and repairs on its fleet of 200 trucks over the last five years.
Evidence showing how the basic data were collected, how this 34.
When potential items of evidence come into the possession of law enforcement personnel, these authorities usually assign numbers, names, or other identifying data to the items.
Compliance with the requirement of authentication means only that the judge admits the authenticated item into evidence; the opponent can still dispute its authenticity before the jury.
This kind of evidence is used to add clarity or vividness to a witness’s testimony.
The diagram of an intersection might be used in a personal injury case; a digital model of a portion of the human body might be employed in a medical malpractice case; a chart or a powerpoint might be displayed to remind the jury of the key evidence in a business conspiracy case; and a map might be presented in boundary-dispute litigation.
Common sense will usually suggest the proper foundation for demonstrative evidence.
The purpose of demonstrative evidence is to demonstrate fairly and accurately that which it depicts.
Absent a stipulation, there must be testimony that the proffered item (map, model, photograph, etc.) is a fair and accurate representation of whatever it displays.
It is usually necessary that the witness providing the evidentiary foundation have personal familiarity with the subject that is displayed by the demonstrative evidence.
Bear in mind that courts usually associate real evidence with items that were actually part of the litigated event (e.g., the gun used by the accused); conversely, courts usually associate demonstrative evidence with illustrative exhibits (e.g., the diagram of a
The overlap occurs when an item of evidence is a recordation-for example, photograph, disk, X-ray, motion picture, or sound recording-that depicts a relevant part or feature of the litigated event.
The proponent must provide evidence sufficient to support two propositions: (1) The subject or thing pictured or heard is the subject or thing that counsel contends it is; (2) The recorded image or voice is an accurate reproduction.
Â§ 3.4 Conditional Relevancy The relevance of one item of evidence (Item A) frequently depends upon another connected item of evidence (Item B).
Puck must produce evidence not only of the terms of the offer, but also of the identity of the offeror-that the offeror was defendant Dora.
The relevance of Puck’s testimony concerning the terms of the telephone offer is conditioned on the connected fact (not supported by evidence) that the defendant made the offer.
When the relevance of proffered evidence depends upon (i.e. is conditioned upon) a related fact that must be supported by other evidence, we say that the proffered evidence is conditionally relevant.
To return to our example, the judge would admit evidence of the terms of the offer conditioned upon the assurance of Puck’s laWYer that he would subsequently produce evidence that the offeror was Dora.
In other situations, such as the reception into evidence of authenticating testimony, the judge does not determine facts from the evidence presented.
The fact supported by the evidence in Column A is conditionally linked to the fact supported by the evidence in Column B. The judge must ensure that, at some point in the trial, the proponent produces sufficient evidence of the factual condition(s) [Column Bl on which relevance depends.
Note that the order in which the evidence supporting the connected facts is presented does not matter.
The foundational requirement states that when a proponent proffers an item of evidence that she claims is genuine or authentic, upon objection she generally must offer additional evidence to confirm its authenticity.
If the prosecutor proffers the accused's glove stained with the victim's blood, she must produce evidence that is sufficient for the jury to find, (1) there is blood on the glove and it came from the victim and, (2) the glove belonged to or was in the possession of the accused.
The simple test, as we have seen, is met if the evidence has a tendency to make the fact to which it is directed more (or less) likely.
It is only when an item of evidence is conditionally relevant that the "sufficient for the jury to find" test is invoked by the judge as she screens evidence supporting the conditioning fact.
The evidence supporting the accused's guilt must be adequate to support a jury determination that the defendant is guilty beyond a reasonable doubt-that is, the state's evidence supporting each element of the offense must be adequate 46.
As we have also seen, the evidence of the speeding black car is admitted "subject to the fulfillment of the condition of fact"'" that forthcoming evidence will be sufficient to support a jury finding that Drake was driving the black car.
If the proponent fails to provide the necessary connecting evidence, the objector is entitled to strike the conditionally admitted evidence and to an instruction to the jury to ignore the evidence that was struck.
For example, in a prosecution for breaking and entering a home during the evening hours for the purpose of committing a serious crime, the prosecutor would ordinarily have to produce evidence sufficient to justify a ''beyondreaeonable-doubt" fmding that the aocused broke into and entered a dwelling place in the nighttime with the intent of oommitting a felony therein.
The reasonable doubt standard would apply to each element, but any particular piece of evidence proffered as proof of each element need only be probative and satisfy Rule 403's balancing test.
When the jury's task in dealing with evidence is confined to a determination solely of conditional relevance, there is virtually no risk that it will misuse the evidence.
The conditioual relevance deternrinations, governed by Rule 104(b) and assigned to the jury, are quite different from deternrinations governed by Rule 104(a) and allocated to the judge.
She would also have to instruct the jurors to ignore the evidence should they find that it is inadmissible under the exclusionary rule or rules that might apply.
The jury has no interest in technical exclusionary rules, nor are its members likely to ignore "inadmissible" evidence.
Depending on how they resolved the factual questions governing admissibility, they would be expected to either assess the probative value of the evidence (if admissible) or ignore it (if inadmissible).
The Application of Relevance Principles to Evidence of Similar Events Suppose the plaintiff, attending her favorite play, slips on the theater stairs during intermission.
At trial, the attorney for the plaintiff offers evidence that two weeks prior to the plaintiff's fall, another patron slipped and fell on the same stairway.
The judge simply screens the evidence, exercising his monitoring authority under Rule 104(b)--eonditional relevance.
The judge must determine whether the probative value of evidence of the similar event(s) is substantially outweighed by Rule 403's counterweights to admissibility, such as jury distraction, time consumption, and prejudice.
On this second question, it is generally the case that the evidence of the other event must be "substantially similar" in order to be admissible under Rule 403 to prove causation.
66 RELEVANCE Ch. m types of evidence is straightforward: direct evidence, if believed, proves the fact without the need to draw any inference.
Circumstantial evidence, if believed, requires the factf'mder to draw one or more inferences in order to reach the fact in dispute.
Note that both direct and circumstantial evidence must meet the test of relevance: each must have probative value and each must point to a consequential fact.
Above, the trier would have only to decide whether to believe the witness who testifies that she saw Dali stab Picasso.
Note that in order to be relevant, the circumstantial evidence, once believed, does not have to establish by a preponderance of evidence (or beyond a reasonable doubt) that Dali stabbed Picasso.
The evidence need only increase the probability that he did so.
When all the evidence has been received, the judge must decide whether or not, taken collectively, the evidence justifies a jury fmding by a preponderance of the evidence (in a civil case) or by a reasonable doubt standard (in a criminal case).
The probative force of both circumstantial and direct evidence is determined by the particular evidence presented and the surrounding circumstances, not by a formal classification.
These judicial principles and rules became fairly uniform across American courts and, in 1975 when the Federal Rules of Evidence were adopted, these appellate determinations were crafted into specific provisions of the Federal Rules.
Whatever the form of the testimony (that is, whether it reveals other incidents, the opinion of associates, or Claggart's reputation), evidence depicting Claggart's violent disposition (a character trait) would be at least somewhat probative of his action on the day in question.
Quite aside from the considerations evidence of character or propensity raises a genuine risk that the trier of fact may base its decision upon a party's "good" or "bad" character and not upon the strength of the evidence concerning the litigated event.
The rules and principles that appear in this subsection are designed to strike a desirable balance between probative character evidence, on the one band, and countervailing concerns, especially trial fairness, on the other.
Chapter IV, which follows this subsection (Â§ 3.6), deals with additional determinate rules of relevance.
The rule of evidence"' that rejects disclosures that the defendant paid the plaintiff's medical expenses is designed to protect the benefactor from adverse evidentiary consequences.
The use of character evidence in civil cases is severely restricted.
Antonio offers three witnesses who will testify as to specific past events; namely that each of them had received loans from Shylock only to discover later that Shylock had provided false information about the true rate of interest.
As we shall observe more fully, in most cases where character evidence is allowed, Rule 405(a) restricts the kind of evidence that may be used to prove character.
Witnesses who know the subject may give an opinion as to his character.
Evidence of specific instances of conduct is normally disallowed.
The reason for restricting the allowable types of evidence to reputation and opinion is that presentation by those two methods does not require a significant expenditure of time.
The most common situation in which character becomes an issue is when a defendant claims entrapment in a jurisdiction in which the question is whether the defendant was predisposed to commit the crime.
If the plaintiff's evidence pertaining to character-evidence such as reputation, opinion, or specific events--is offered solely to prove Sowerberry's traits of profligacy, violence, and abuse, it is admissible.
We are reminded that when a party offers character evidence, the opponent must consider whether character evidence is admissible at all and, if it is, what type of character evidence is permissible.
If violent temperament is the consequential trait in question, evidence of dishonesty or sexual profligacy would fail the test of relevance because it is not probative of violence.
To summarize: you must determine whether a character trait is itself consequential ("in issue") or whether it makes another consequential proposition more (or less) likely (offered as circumstantial evidence of conduct).
You must determine whether the proffered character evidence has probative value to establish
As you will see, the law of evidence allows this use of character only in limited circumstances and only in criminal cases.
The traditional justification for rejecting character evidence offered to prove conduct is that its probative value is substantially outweighed by the introduction of collateral issues, by the consumption of time, and by the risk of prejudice.
Evidence of a person's character or a trait of character is not admissible 61.
Evidence of the character of a witness, as provided in rules 607, 608, and 609.
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.
The third exception, Rule 404(a)(3), deals with witnesses and, as you will see in Chapter IX, permits evidence pertaining to a witness's character for truthfulness-the factfmder can consider that because the witness has an untruthful character, the witness may be acting in accordance with that character while testifying.
The rules of impeachment apply, with minor variations, in both criminal and civil cases.
Â§ 3.6 RULES OF RELEVANCE RELATED TO CHARACTER 75 permits evidence to be admitted when it is offered for a purpose other than proving a person's character."
Let us now return to the major exceptions contained in Rule 404(a), namely, subsections (a)(l) and (a)(2).
The picture that is emerging is that, aside from character evidence used to impeach a witness, there is general reluctance to admit character evidence to prove a person's conduct.
This reluctance gives way to the accused's right to present character evidence (known as the "rule of mercy").
The circumstantial use of character evidence is prohibited in civil cases.
The preferred types of character evidence are opinion evidence and reputation evidence.
In those comparatively rare cases where character is "an essential element of a charge, claim, or defense"" evidence revealing the subject's past conduct may also be used to prove his character.
Character evidence offered under FRE 404(a)(l) and (a)(2) is confined to criminal cases.
The stronger the relationship between the character trait and the crime charged, the greater the probative value of character evidence.
As we saw in the last subsection, there are countervailing considerations that push against admitting evidence of D's character.
Or perhaps the trier will de-emphasize the consequences of a false determination that the accused committed the crime charged (insurance fraud) because evidence of his unfavorable character has provoked the trier's belief that he deserves to be confined or otherwise penalized.
What the prohibition means in the present context is that the prosecutor cannot introduce evidence of D's character for the purpose of helping to prove that D committed the crime with which he is charged.
The Accused's Right to Introduce Character Evidence The fll'st major exception to this general exclusionary principle (Rule 404(a)) is set out in Rule 404(a)(l) which allows the accused to introduce evidence of "a pertinent trait of character."
In practical terms, this means that the defendant may introduce evidence of a character trait that would affect his conduct in such a way as to make it unlikely that he committed the crime charged.
A character trait that is not inconsistent with the crime charged has no probative value to demonstrate that the accused did not commit the alleged offense.
For example, in a prosecution for aggravated assault, the defendant would not be permitted to introduce evidence of his character trait for honesty.
His right to produce evidence that his character is inconsistent with the charges against him, even if not guaranteed by the Constitution, aligns nicely with his generally recognized right to fully defend himself.
Since a major ground for excluding character evidence is apprehension about its prejudicial effect, the accused's use of evidence of good character can be justified because, in this context, there is a reduced risk that the trier will evaluate the evidence irrationally or emotionally.
Evidence of the Victim's Charocter In addition to the right to portray his own character, Rule 404(a)(2) extends to the accused the right to introduce evidence regarding the victim's character when this evidence is relevant to the accused's defense.
Holmes v. South Carolina, 547 U.S. 319 (2006) (accused's right to effective defense was violated by statute that barred the presentation of exculpatory evidence); Chambers v. Mississippi, 410 U.S. 294, 302 (1973) (accused denied due process when he was barred from introducing confession of third party that latter committed the crime in question and, also, barred from impeaching key witness.) 55.
H the accused in a homicide case introduces evidence that the alleged victim was the first aggressor, the prosecution may rebut this evidence by introducing evidence that the victim had a peaceful character.
Note that in the limited circumstance, the accused's introduction of "noncharacter" evidence pointing toward the victim's initial aggression triggers the prosecutor's right to introduce character evidence supporting the victim's peaceful disposition.
In the limited instance, the prosecution's use of character evidence must be triggered by the defendant's assertion.
Since D has not called to the stand any character witnesses, it can be argued that D has not opened the door to (rebuttal) character evidence by the prosecutor.
A close reading of Rule 404(a)(2) reveals that if the accused introduces evidence (not necessarily character evidence) in a homicide prosecution for the purpose of showing that the victim was the fll'St aggressor, the door is partially open.
58 the rule governing rebuttal recognizes that in murder cases where the central question is who was the initial aggressor, a character trait such as peacefulness or aggressiveness can have signillcant probative force.
Since the alleged victim is now dead, the prosecutor's only available means of rebutting D's evidence may be to call witnesses who will testify that V was a peaceful, nonviolent person.
Recall that witnesses proffered to testify to the subject's past conduct as evidence of the subject's character trait(s) are disallowed unless character "is an eBSeDtial element of a charge, claim., or defense."
The evidence of V's peaceful character is allowed on the grounds of evidentiary balance and the unlikelihood that the trier will use this evidence irrationally.
The expectation is that the trier will use evidence of V's peaceful character for its intended purpose, namely, to determine who initiated the deadly encounter.
A related but distinct pattern is found when D does present character witnesses who testify to some feature of V's character that is related to D's defense.
Suppose, for example, in a prosecution for criminal assault, D pleads self-defense and presents character witnesses who testify that V has a violent, aggressive character.
But suppose the prosecutor goes further and offers character evidence that D is a violent, aggressive individual.
In terms of Rule 404, the issue is whether the accused's use of character evidence to establish a relevant trait of the alleged victim triggers the prosecutor's right to use character evidence to prove that the defendant has the same character trait.
When D's evidence of V's character trait is admitted under Rule 404(a)(2), the prosecutor can invoke Rule 404(a)(l) and introduce evidence that D has the same trait.
Presenting and Cross-Examining Character Witnesses Recall that Federal Rule 405 restricts the evidentiary means by which a subject's character can be proven.
The attorney presenting a character witness must initially elicit "foundation"
A reputation witness testifies as to the subject's reputation for the trait in question (for example, honesty); an opinion witness testifies that in her opinion the subject possesses the trait in question (for example, nonviolence).
59 Although such evidence is often the most accurate measure of the subject's character, its introduction is both time-consuming and a source of significant jury distraction.60 Rule 405(b) allows evidence of the subject's specific conduct only in cases where character is a principal issue, that is, only "[i]n cases in which character ._. is an essential element of a charge, claim, or defense …. ”
All witnesses, including character witnesses, are subject to cross-examination and impeachment.
One technique for attacking the credibility of a character witness is to weaken or negate the character witness’s assertion that she is familiar with the subject’s reputation or (in the case of an opinion witness) that she is well acquainted with him.
The cross-examiner can ask the opinion witness about events that would be likely to affect her opinion about the subject’s character for the trait(s) in question.
) Third, by introducing character evidence that the victim, !
ago is “deceitful, treacherous, and obsessively ambitious,” Arnold triggers the prosecutor’s right not only to present character witnesses who will testify that Iago is, say, truthful, fair, and honest, but also to present character witnesses who will testify that Arnold is deceitful, treacherous, and obsessively ambitious.
If the trier of fact believes this evidence bearing on Arnold’s bad character, it might draw the inference that Arnold was guilty of the charged spying and planting false evidence.”
Consider the evidentiary options available to the prosecutor if the rules of evidence disallowed cross-questions in the form of haveyou-heard or did-you-know inquiries.
The prosecutor could call her own character witnesses to testifY that the accused has character traits consistent with the crime charged.
The prosecutor’s cross-examination may be ineffectual unless he can ask questions about the character witness’s knowledge of prior instances involving the accused.
Circumstantial Use of Charo.cter Evidence in Civil Cases Federal Rule 404 generally disallows character evidence when offered to prove specific conduct.
Except for allowing character evidence that bears on a witness’s credibility, Rule 404′s exceptions to its general prohibition are confmed to criminal cases, which means that evidence of character to prove conduct on a particular occasion is inadmissible in civil cases.
The justification underlying the admission of circumstantial character evidence in criminal casesspecial precautions against an erroneous conviction and the accused’s right to make a full defense–are absent in civil trials.
In lawsuits involving careless behavior, character evidence has weak probative value.”
Â§ 3.6-3 Evidence of Habit Distinguished from Evidence of Character Habit is related to, but different from, character.
If evidence of the regular use by X of her seatbelt were offered to show she was a careful person, it would be excluded.
X may have a character trait for punctuality and a habit of returning to her office from lunch between 12:50 and 1:00 p.m. Evidence of the former would be rejected, while evidence of the latter would normally be received.
As suggested earlier, in instances involving a witness’s credibility, the Federal Rules allow variÂ· ous kinds of evidence designed to reveal bad character for truthfulness.
Â§ 3.6 RULES OF RELEVANCE RELATED TO CHARACTER 85 particular situation (habit) has probative value that generally exceeds the probative force of evidence of a character trait.
Unlike evidence of character, evidence of habit is “unlikely to provoke such sympathy or antipathy as would distort the process of evaluating the evidence.”
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Note that the Rule makes specific reference not only to evidence of the habit of a person, but also to the “habit” (more specifically a custom or routine practice) of an organization such as, for example, a business entity, fire department, hospital, library, or government office.
The trial judge must be allowed considerable discretion both in determining whether conduct is narrow and specific enough to constitute a habit (as opposed to a character trait) and whether the foundational evidence of repetitious activity suffices to establish a habit or practice.
At the conclusion of each visit, Herbert gave her a valuable item of china or jewelry that was a family heirloom.
Because this is a civil case, Rule 404 renders inadmissible evidence of character offered to prove particular conduct.
Evidence of character is freely admissible in a civil case when character is an essential element or a claim or defense, but character is not such an element .
Rule 404(a) rules out the character evidence that Alice is honest and law-abiding.
Alice’s best argument rests not upon character evidence, but upon evidence of habit.
The judge will probably characterize this evidence as tending to establish a character trait (generosity), rather than a habit.
Alice can also argue that even though testimony by friends and family concerning generous gifts to other nieces and nephews may not constitute evidence of habit, it provides the background and context for her habit evidence and ought to be admitted.
Alice’s argument is that in order to allow her to “tell the full story of her defense” the judge should exercise his discretion and allow at least some of the evidence about generous gifts to other family members.
( the evidence, not involving other witnesses, would not be time consuming.)
Rule 404 prohibits evidence offered to establish that the accused has a character trait pertinent to the crime charged allowing the trier to infer that because the accused has this trait or propensity, he is more likely to have committed the charged crime.
The forbidden sequence is character evidence, to propensity (predisposition), to conduct in connection with the charged crime.
Evidence disclosing a collateral (uncharged) offense or wrongful act also reflects negatively on the accused’s character, but if the trier can use this evidence properly without traveling the forbidden inferential route from character evidence, to propensity, to conduct, then the proscription on character evidence is inapplicable.
Evidence of the collateral misconduct can in such cases be permissibly used to draw inferences about some particular feature of the present crime.
The prosecution offers evidence that five years earlier, D’s Canadian employer had fll’ed him for misappropriating company funds and covering up his theft by making false accounting entries.
Â§ 3.6 RULES OF RELEVANCE RELATED TO CHARACTER 89 This evidence would be admitted, in the words of Rule 404(b), to show “knowledge . . . or the absence of mistake or accident.”
The point to emphasize is that the prohibition barring the introduction of collateral crimes evidence is limited to situations where the only use of that evidence is to establish D’s unfavorable character trait, which would then be used by the trier to draw inferences about D’s criminal propensity and to his conduct during the charged crime.
Think of the prohibition as a rule that rejects evidence of uncharged misconduct if its only probative value is to show propensity or predisposition.
Identity cannot be established simply by showing that the accused has committed collateral offenses similar to, or the same as, the charged offense.
If D is charged with bank robbery and denies that he was the robber, the prosecution cannot introduce evidence that before (or after) the charged crime, D robbed a bank.
The reason the evidence is rejected is because in order to use it, the trier will necessarily draw the following inference: because D has committed a similar collateral crime, he has a propensity to commit bank robbery, and he is more likely to have committed the robbery in question.
But the jury will be required to decide whether it was D or X who committed the crime, and the prosecution will contend that evidence that D has knowledge of how to embezzle and cover up by making false entries is probative of the fact that D committed the crime.
It is clear that the prosecution cannot simply obtain introduction of the evidence to prove identity, because the prior
This forbidden line of reasoning is even more apt to occur if D has committed multiple crimes similar to or the same as the charged crime.
If evidence of similar collateral (uncharged) crimes were freely admissible, prosecutors could obtain convictions more easily, even in the face of weak evidence that D committed the offense charged.
Having a criminal record can haunt the accused throughout the process of enforcing the criminal law, that is, from the police investigation through final judgment.
While, evidence of collateral misconduct does taint the accused’s character, this ancillary effect is tolerated if the evidence has significant probative force, independent of character, to establish an element of the crime charged.
The court must assess the evidence under Rule 403: unless the probative value in proving identity is substantially outweighed by the risk that the jury will misuse the evidence to impugn the defendant’s character, the evidence will be admissibleand the defendant will be entitled to have the jury instructed that it the prior act cannot be used as evidence of the defendant’s character.

Ojo Camera

Daryl — Thu, 05 May 2011 21:48:48 +0000

Ojo Camera

Image by Deaf RED Bear
Calling Snap! VRS. It’s a cool camera device. I got it for free and I like using it, it’s different.

Does Videophone Counseling Work?

Daryl — Fri, 08 Apr 2011 21:42:00 +0000

Sharon Duchesneau answers a frequently asked question about videophone counseling for Deaf people. To cite: Duchesneau, S. (2007, January 26). Does Videophone Counseling Work?. ASC on the Couch. Retrieved January 26, 2007, from www.ascdeaf.com
Video Rating: 0 / 5

How Subtitling and Captioning Works

Daryl — Sun, 27 Mar 2011 21:45:13 +0000

How Subtitling and Captioning Works

Similarly, even without the Nike logo, we associate the phrase just do it as the Nike brand. It is the first thing that comes to mind. That is one perfect example of good branding and captioning to think that Nike commercials are not even complicated. They are actually very simple and have been that way for some time. Yet, people remember it and like watching it. It made such an impact not because of the commercial itself but because of the overall black and white theme, the perfect design to highlight its logo and the phrase just do it.

In summary, font, size of font and positioning plays a vital role in complementing the video itself to maximize the full potential of a caption or subtitle. Aside from the fact that you need to be creative in creating a good subtitle and caption, there is a process in how captions and subtitles are created and here we will attempt to explain it in very basic terms without using technical jargon.

Subtitles and captions can be prepared by utilising a specially built workstation. It uses software that can handle various formats. Managing captions and subtitles is a different matter especially when you need to make revisions or edit subtitles a few minutes before broadcasting live. Subtitle management software is used for this, workflows can be built using the software to allow edited subtitles and captions to be slotted into broadcast media at the last minute.

Now it is time for you to describe your content so it allows the deaf or hard-of-hearing to appreciate what you are displaying. The usefulness of subtitles and captions is not limited solely to people with disabilities however, in fact many people who have perfect hearing enable captions and subtitles simply because it provides assuredness.

Audio description can also make content easier to find which can help get even more viewers. Content can be described through the use of meta information (referred to as ancillary data) so that it is displayed for relevant keyword searches.

When adding subtitles to video timing and precision is essential so as not to overlap descriptions simultaneously with other dialogues. Now you need to encode and transcode as well as insert your subtitles and captions in such a way that it seamlessly integrates into the video. There is quite a challenge here, previously subtitle data was stored in a remote server, now it needs to be included with the video file because there are too many ways in which a video is accessed, through television, a computer or a mobile phone just to name a few.

This is not even mentioning downloads. Imagine seeing captions on the laptop but as soon as you download a video, it is gone. That is what we are trying to avoid here. And finally when you have gone through all the steps above, they need to be “bound” to the content so the viewer can see the captions as they are watching. This can be done through early binding when it is prepared way ahead of time before transmission, late binding when it is prepared near transmission and can only be achieved by advanced encoding techniques and live binding when it is prepared as close to air time as possible probably seconds earlier. The final stage in the process would normally include adding any ancillary data that is required.

People could be forgiven for thinking that subtitling and captioning are easy but that is simply wrong. It is really the fault of web applications that make things so easy and such a convenience for us that little do we know that it is such a complex process. But do not be disheartened, as always technology is the key in overcoming challenges like these. And usually there are companies that offer existing subtitling software for the whole solution from step one to the last.

Kathryn Dawson writes articles for the Softel Group, an award winning provider of TV and video technologies including subtitling and audio description. Softel develops elegant, compact and cost-effective solutions concentrating all the required functionalities into one box per channel and reducing the rack space needed. Their subtitle software is especially devised with leading video server manufacturers and automation systems to enhance efficiency.

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Sorryson Video Relay Service

Daryl — Wed, 23 Mar 2011 21:39:22 +0000

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