Evidence

RULE 606. JUROR'S COMPETENCY AS A WITNESS

(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence. (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury's attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.

RULE 103. RULINGS ON EVIDENCE

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (c) Court's Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. (e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. Rule 103. Substantial Right of a Party • The ultimate result is not effected by what happened or should have happened • Appellate courts often conclude that even though there was some error it was harmless because it could not have affected the result. • The burden is on the prosecutor to show that it did not affect the substantial right. ○ Prosecutor must prove beyond a reasonable doubt that it was harmless. • General rule: Failure to object constitutes a waiver. • EXCEPTION: Plain Error/fundamental error (Arizona Courts): ○ In AZ, Fundamental error is defined as error that goes to the foundation of the case or takes from a defendant a right that is essential to his defense. ○ A fundamental error cannot be waived. • 3 consequences: ○ Appellate opinions on evidentiary issues often are less definite than decisions on other legal points. § Court will usually not say much about it because it is a discretionary ruling. ○ Evidentiary battles, in practice, are won and lost at trial level. § Occasionally there will be a reversal or a remand, but most of the time these battles are won and lost at trial. § Appellate courts typically don't grant relief ○ Students who seek to be litigators must internalize the Rules of Evidence as complete as possible. Effective litigators know the language, number, and policies of each rule.

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if.... (1) If the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context;... ○ What is a timely objection? Before the jurors learn about potentially inadmissible evidence § Done as soon as the ground for objection is known § Got to object in time for the judge to be able to do something about it; if jury has already heard it...objection may not be sufficient...may have to make motion ○ Appellate will say waived that objection by not making it on time ○ Pg. 42...Rodriguez case...untimely objection that leads to a waiver ○ OBJECTIONS MUST BE TIMELY AND SPECIFIC § Specific-->must be clear to what you are objecting to--gives both the judge and opponent notice about the basis for an objection □ Generic objections mostly end up in waiver □ Unless ground to objection is so obvious and everyone knows ○ If multiple reasons to object, should raise all those specifics....raising one specific objection will not prompt the trial judge to consider other grounds and will not preserve those other grounds for appeal. • When one party objects to introduction of evidence, the opponent makes an offer of proof to show the judge what the evidence entails ○ If the opponent fails to make this offer, then he waives any objection on appeal ○ Offer of proof-->judge will say, "you have a couple options hear...(1) describe what witnesses's answer would have been or (2) could pretend jury is here and bring witness in and have them answer questions and I'll see if ok." ○ Jury is NOT there for an offer of proof-->if jury is there, the offer of proof is the evidence and haven't resolved a thing ○ Very important ○ Serve two purposes: (1) you may persuade the judge that she is wrong...judges make mistakes sometimes...might persuade judge to change the ruling (2) even if you still lose and the judge is nice about it you have now protected your record on appeal ○ Give offer of proof to have judge change his mind--do it to protect appeal • Some states say if you lose your objection, you have to say "may the record show I..." this is rare...do not make you take that extra step

RULE 408. COMPROMISE OFFERS AND NEGOTIATIONS

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

RULE 410. PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

What are motions in limine?

>at the beginning ○ e.g. a v. b; A is P and may file motions in limine on evidentiary questions saying "your honor, what I'm going to do in this case is offer a photograph...get motion in limine to have photographs admitted at beginning" ○ e.g. in criminal proceeding....defense attorney files motion in limine to exclude certain evidence ○ Can be very, very helpful but a smart lawyer does NOT on day of trial or before to start does not give judge a bunch of motions to limine...pisses judge off • When representing client in court and files motions in limine in court...be prepared for judge to say.."thank you but not something I can decide right now." ○ With vast majority with motions in limine, the judge will say he can't rule on that right now.

RULE 602. NEED FOR PERSONAL KNOWLEDGE

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

OBJECTION: Leading Question (Direct Examination) (Rule 611(c)) "Your honor, I object. Counsel is leading the witness."

Authority: A leading question is one that suggests to the witness the answer desired by the examiner. Rule 611(c) provides that leading questions should not be allowed on direct examination. They are, however, permissible on direct examination where "necessary to develop" a witness's testimony.' CLASS NOTES: § A cross examiner who doesn't lead a witness may not be a very good job of cross examination--way to control witness will lead that kind of witness...cross examiner permitted to do that § Only for direct examination § e.g. cross examiner on sexual assault case..."were you sexually assaulted on blah blah blah date?" can't lead her like that...he wants jury to hear what happened to her § Leading is not always a good objection but most of the time on direct examination is an objection that should be sustained § e.g. leading question--> if I hear it, I'll know it for sure...almost always when the question suggests the answer...is a leading question □ Yes or no may not be a leading question

OBJECTION: Asked and Answered (Rule 611(a)) "Your honor, I object. The witness has already answered the question."

Authority: A question has already been asked and answered is not likely to elicit additional evidence of probative value and tends to waste time. Response(as applicable): The witness has not yet answered this question; Opposing counsel asked this question, I have not. CLASS NOTES: § Witness has already answered question § Judge will probably sustain objection □ If judge overrules it, you get a freebie, but may give you the same answer or one less favorable § When a lawyer objects to this...saying "judge, counsel has already answered question and already got response...let's move on."

OBJECTION: Argumentative Question (Rule 611(a)) "Your honor, I object. The question is argumentative; counsel is trying to make an argument to the jury."

Authority: A question is argumentative if it is merely an effort by counsel to make a jury argument, to summarize, draw inferences from, or comment on the evidence, or to ask the witness to testify as to his own credibility. Response: Rephrase question CLASS NOTES: § Lawyers are not supposed to argue their cases at least explicitly while asking questions of witnesses □ Good lawyers do it subtly § Often confused with harassing or badgering a witness § Based on notion that lawyer who asked question is really making an argument to the jury § Pg. 335 § Matter of degree

OBJECTION: Compound Question (Rule 611(a)) "Your honor, I object. Counsel is asking a compound question."

Authority: A question that combines two or more distinct inquiries is likely to be confusing to the witness and misleading to the jury. Response: rephrase the question. CLASS NOTES: § A question that combines two or more distinct inquires is likely to be confusing to the witness and misleading to the jury § Pg. 336 § Some questions combining two areas that are distinct and not together and almost always make witness stuck and not know what to answer

OBJECTION: Harassing the Witness (Rule 611(a)) "Your honor, I object. Counsel is trying to harass [embarrass] the witness."

Authority: Rule 611(a) direct the court to exercise reasonable control over the mode of examining witnesses and presenting evidence so as to protect witnesses from harassment or undue embarassment. Response: rephrase the question CLASS NOTES: § Criminal defense; charged with sexual assault...criminal defense asked victim highly personal questions and gets in her face □ Harassing the witness § Keep it separate from argumentative question objection

OBJECTION: Cross-Examination, Beyond Scope of Direct (Rule 611(b)). "Your honor, I object. The question asked goes beyond the scope of the matters raised on direct exam."

Authority: Rule 611(b) provides that cross-examination should be limited to subjects raised on direct examination and credibility issues. § Provides that cross examination should be limited to subjects raised on direct examination and credibility issues § If my opponent calls a witness and direct examines her and now my chance to cross examine, my questions should be kept within scope on what first lawyer asked § SHOULD--because most states follow american rule that says "we aren't going to say to a cross examiner that they can't ask questions beyond the scope because might be important to jury to decide case..." § Wide open cross examination doesn't mean cross examinier can ask anything...there's still questions that aren't proper □ What it means that is the cross examiner may not be teether to what was asked on direct if judge will allow □ If judge or other lawyer is concerned that causing a problem on appeal, the lawyer might ask judge on recess that "judge I understand that you allowed me to go a little further on cross than rule 11 (b) allows...will you just set the record why."

RULE 603. OATH OR AFFIRMATION TO TESTIFY TRUTHFULLY

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.

RULE 601. COMPETENCY TO TESTIFY IN GENERAL

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.

Objection overruled

Evidence allowed

!!!Memorize: Rule 401. Test for Relevant Evidence

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be withtout the evidence; and (b) the fact is of consequence in determining the action.

RULE 409. OFFERS TO PAY MEDICAL AND SIMILAR EXPENSES

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. a. Rule 409 is broader because it applies in any situation in which an individual or organization pays or agrees to pay medical expenses--unlike Rule 408, there need not be a "claim" or a "dispute" and the statement need not be part of any compromise negotiations Only excludes the offer to pay or the furnishing of medical expenses

Objection sustained

Evidence out

RULE 411. LIABILITY INSURANCE

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence IS ADMISSIBLE unless any of the following provides otherwise: (1)The United States Constitution; (2) a federal statute; (3) these rules; or (4) other rules prescribed by the Supreme Court. Irrelevant evidence is NOT admissible

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if it probabtive value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Interpreters

The federsal rules of evidence do not confer the right to an interpreter or specify when interprets should be appointeds • Rule 604 sets the standard for judging an interpreter's compentences • Under this rule, an interpreter's competence rests on two factors: ○ (1) first, the interpreter must be qualified ○ (2) the interpreter must make an oath or affirmation not to tell the truth but to make a true translation § Class Notes: □ Court interpreters are huge □ Easy to apply

RULE 605. JUDGE'S COMPETENCY AS A WITNESS

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. § The rule also recognizes that as a practical matter, a party might withhold an objection to a judge's testimony, fearing that the judge might retaliate against a party raising this kind of complaint. § Objections are necessary to preserve this issue for appeal § Judges rarely, if ever, literally attempt to take the witness stand in a case whether they are presiding. But Rule 605 also prohibits the judge from offering commentary from the bench that amounts to testimony.

RULE 407. SUBSEQUENT REMEDIAL MEASURES

When measures are taken that would have made an earlier 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 or its design; or a need for a warning or instruction. But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Burdens v. standards of proof

○ Burdens vs. Standards of proof § We'll study this in more detail later but it is important at this point to be able to distinguish between these two things. Sometimes people use terms interchangeably: this runs the risk of creating confusion § In a criminal case, the state bears what is sometimes called the "ultimate" BURDEN of proof. Tp persuade the jury that the defendant is guilty of the crimes with which she is charged § The standard of proof in all criminal cases is "proof beyond a reasonable doubt" § Different STANDARDS of proof apply in CIVIL cases: □ "Preponderance of the evidence" □ "Clear and convincing" § Keep these concepts DIFFERENT □ May be e-mail, thought he sent it out ○ Defense Case-In-Chief (defendant's) ○ Closing Argument (NOT A STATEMENT) § Tell why the jury should reach the correct conclusion. Cover the law or simply say that the state has not shown the case "beyond a reasonable doubt"

Direct v. Circumstantial Evidence

○ Direct: eyewitness-->saw collision ○ Circumstantial: come into classroom all wet-->reasonably infer that it's raining outside § Remember that under AZ law juries are told virtually in every trial that the weight or significance you give to a bit of evidence doesn't matter if it's direct or circumstantial. □ In some states, for crim law, can't convict based on circumstantial evidence ○ Bottom line: fact that evidence is circumstantial as opposed to direct doesn't matter § But we want to know what the difference is so we can make proper decisions in trying our case ○ Pg. 16 example § Situations can have both circumstantial and direct evidence □ However, there is no legal effect

Bricks in a Wall Metaphor Used in Class Every piece of evidence is a brick...

○ Every piece of evidence is a brick...picture painting to jury ○ There may be times when lawyer has the burden, there may be times when bricks may be missing...so there may be missing bricks § e.g. think of jigsaw now puzzle...missing pieces but you know supposed to be a beautiful sunset ○ Proven case one brick at a time...getting no objections and all of sudden offering evidence thinks goes to a particular brick and person says "objection...doesn't prove my client is liable." judge overrule § Allowed as person building brick to put in one piece at a time □ e.g. already have first 10 bricks and just put another one down...brick and wall metaphor comes in handy: one brick at a time but if already laid brick and try and lay it again...opponent can object for asking already.

Why do the Rules of Evidence exclude evidence?

○ Exclude irrelevant evidence because... § Because it's not relevant; wastes time and resources; not going to help the jurors decide the case § Not going to help jury-->don't waste our time ○ Exclude privileged information § That particular relationship is more important than the evidence we are excluding § There is a lot of very relevant evidence that judges don't allow because would violate special relationship § Policy to protect that particular relationship ○ Exclude hearsay evidence when we do exclude it § Because everything else being equal hearsay evidence is less reliable than not hearsay evidence-->general rule

• Five essential principles about the Federal Rules of Evidence.

○ First, the evidence nets, like real fishing net, don't activate themselves. Trial attorney cast these nets into the river, hoping to catch and eliminate an opponent's evidence. ○ Second, almost all the federal rules tell us what evidence to exclude, not what evidence to admit. ○ Third, with a few exception that we will study later in the course, evidence must survive scrutiny under every rule to gain admission. ○ Reminds us that just because evidence meets the relevance test...it still can be excluded ○ Fourth the placement of the Rule 403 net at the end of the river is particularly significant. ○ Final net where the little fishies must meet before heard by jury ○ Rule 403 always there as a back up ○ Memorize rule 403 ○ Finally, the evidentiary fish making their downstream journey do not travel alone. Each fish has a trial lawyer helping it navigate the stream.

Rule 401 Class Notes

○ Fundamental rule of evidence is relevance § Only relevant evidence is admissible ○ The rule limits the amount of time that the parties, lawyers, jurors, and judge devote to the case ○ Second, the relevance requirement focuses the jurors on facts that the law deems important ○ Memorize rule 401 § Very low threshold rule § "any tendency to make a fact more or less probable" § "the fact is of consequence in determining the action" □ As objecting lawyer...all we have to say is "irrelevant" □ B is technically the definition of relevance § The fact(subection a))-->of consequence in § e.g. helen wearing gray sweatshirt...material? No; but if alleged robber...then what he's wearing at alleged robbery is key; will be material

• Rule 105

○ If evidence is admissible only for limited purposes or against particular parties, and a party requests an instruction making those limits clear, the judge must give that instruction. ○ MUST ○ e.g. rule 609 deals with issue if what if witness coming in to testify with convictions...able to ask witness about convictions--credibility...what if defendant has prior convictions (felony convictions are NOT admissible unless until the defendant testifies) § If judge allows one or more of those prior convictions to impeach defendant...the prosecutor is not allowed to cross examine him as to how credible he is; the judge should always give a limiting instruction § Instruction should say "ladies and gentleman you have heard evidence that Mr. Jones has been convicted on crimes in prior cases...purpose of evidence is not to suggest that because he did it once, he's guilty...only purpose is to allow you more info about the defendant to help you determine credibility."

Rule 401 (b): What is a fact "of consequence"?

○ If something has nothing to do with lawsuit; technically it's worse than irrelevance, immaterial...but combined the two...don't have to worry about them as separate objections

Jury Selection

○ Is jury selection an art or a science? § An art--develop the skill □ Always going to be exceptions to general principles you may form in head § How do we make it more scientific? □ Hire jury expert to sit with us during jury selection ® Read body language and way they speak § It is an art

Closing argument

○ Juries don't like objections ○ Don't object during closing arguments § Only if you have a good reason § If you don't make a needed argument--appellate court will laugh in your face...appellate court asks..."did you object" "well no..." then you waived that argument on appeal

• Opening statement

○ Lawyers are not supposed to argue their cases during the opening statement ○ Gives jury preview of the evidence that lawyer expects jury to hear, smell etc. ○ Can't argue case; judges will stop you ○ A good lawyer will recreate in the juries mind exactly what happened § A good prosecutor can make a jury feel like they were right there when it happened ○ General rule: try to keep people from taking sides; extremely important in a criminal case § Try to get juries to wait to take sides

Negative evidence

○ Marijuana field...tries to show no large transactions in bank § Trial judge said "no...that negative evidence doesn't prove anything." there's far too many other reasons why not record it § Negative evidence doesn't prove anything □ Can be admissible in certain occasions

• Prosecutor's case-in-chief

○ Prosecutor or plaintiff in civil case puts on their case ○ During each witness's testimony plaintiff or prosecutor asks questions; other side cross-examines. In some cases judges allows re-direct questioning... ○ At end of prosecutors case, defense may make motion on behalf of defense to end trial right now because under no set of circumstances can the plaintiff win (civil case); in crim case same thing...in no way could a reasonable juror say he did crime ; motion for acquital (crime case)

Rulings on relevance vary...

○ Relevance depends upon the legal theory underlying the case ○ Rulings on relevance vary from case to case; they depend upon the legal principles governing the case, the disputed facts, and the lawyer's ability to articulate a persuasive connection between the two

OBJECTION: Irrelevant (Immaterial, Not Probative) (Rules 401 and 402) "Your honor, I object. The evidence is irrelevant and inadmissible under Rules 401 and 402"

○ Relevance is a key concept to the law of evidence ○ If evidence is irrelevant it is conclusively not admissible § There are rebuttable presumption and conclusive presumption □ Most presumptions with deal with in court are rebuttable ○ This presumption is NOT rebuttable ○ Irrelevant evidence is NOT admissible

• Federal rules offer on presumption that we take wide view of what is admissible...

○ Rules are rules of exclusion...start with presumption that rules are read broadly to let in as much as possible but individual rules operate to exclude certain pieces of evidence

• What is a curative instruction?

○ Something terrible or inappropriate was said and the lawyer objects and moves to strike and asks judge to instruct the jury....the judge will say "I'm granting the lawyer's motion to strike and instructing jurors to disregard what they just heard." § Protect our record this way; may not make the jurors forget

OBJECTION: Habit Evidence Not Admissible (Rule 406) "Your honor, I object. Counsel has not established that the conduct qualifies as admissible habit evidence under Rule 406"

○ Talk more about this ○ The lawyer might not say all those words but if objects based on habit judge will know what the issue is ○ Before habit evidence is admissible there is a foundation that has to be laid for it to the extent that particular action is automatic to a particular person that is a habit and never varies...will qualify under rule 406 and will be overruled ○ But if only done it on one occasion and no habit, objection will be sustained and lawyer better reword question

What is judicial notice?

○ The city of phoenix is located in Maricopa § And judge would most likely say, "okay, counsel I'll take judicial notice of that fact" ○ Why make them prove it when everyone already knows it? ○ Rule 201, the judge should ask the other side if they agree. If other side objects...give reasons § Unless they are pretty good reasons, judge will overrule the objections and take judicial notice ○ It's a great time saver ○ Sometimes lawyers and judges misuse judicial notice § e.g. asking to take judicial notice of file?? What??? Not proper ○ Judicial notice can be a real timesaver and something rules of evidence specifically talks about

Example: Harry Ray and Uncle Stan pg. 61

○ The fact that harry has been arrested three time previously for a DUI is not admissible ○ Since we are suing stan on the basis that he knew harry's prior behavior...that is admissible against stan because lawsuit against stan is about how shouldn't let harry drive car because knew of prior arrests ○ Relevant but highly prejudicial • Limiting instruction ○ Because the evidence regarding harry's prior arrests does not prove that hjarry was driving drunk when he crashed into the store, you should not consider the evidence for that purpose. The sole matter to which this evidence speaks is Kelly's Liquor Store's allegation that Stan knew Harry was an irresponsible driver when Stan lent Harry his car § Which word get rid of? □ "should" change to "must" □ "drunk" change to "impaired" □ "crash" -->loaded word

OBJECTION: Nonresponsive Answer (Rule 611) "Your honor, I object and move to strike. The witness's answer was nonresponsive and is inadmissible because ____."

○ The reason they add "and is admissible because ____" because the other lawyer really doesn't have a basis to object nonresponsive unless there is some independent reason why evidence is not admissible ○ So if I'm the lawyer that is objection to a witness's answer to the other lawyer's question...I better say more than nonresponsive....better give more of a reason ○ We can't unring the bell but we do it and get away with it in cases where whatever the witness said wasn't that big of a deal

What are motions to supress?

○ What if defense attorney thinks evidence obtained illegally..file motion to supress ○ Special kind of motion to limine ○ Through that motion, lawyer asking judge to supress or exclude certain testimony that know prosecutor going to present § Problem with them: □ Most often necessary for evidentiary hearing to have before trial; got to decide that ahead of time □ Procedural rules put time restraints on attorneys □ If evidence is excluded, case may have to be dismissed □ Motions to supress are similar to but different from motions in limine by time restrains

OBJECTION: Personal Knowledge Lacking (Rule 602) "Your honor, I object. No showing has been made that the witness has personal knowledge about this matter."

○ What the lawyer is saying is that the questioning lawyer has NOT laid a foundation § If I want Wendy to testify about that collission that occurred on central and virginia I've got to lay a foundation...if I don't, the other side will likely object based on lack of personal knowledge, speculation, or foundation ○ Really another way of saying..."counsel asking witness to speculate..." ○ Judges HATE speaking objections § Legal ground + speech= speaking objection § State your legal ground and cite a specific rule □ Not required but not a bad idea to cite evidence rule □ Clues the judge to think about the those rules of evidence

Opening the Door

○ What they are saying is "I wouldn't have been able to offer certain evidence but you did or say something that now allows me to get into evidence that otherwise would not have been admissible" § e.g. introducing evidence of financial hardship...allowed them to admit evidence like insurance payments that would have been made to her and her family. □ Wouldn't have come in at all before...but she mentioned finacial hardship ® I can prove she's getting money from insurance...not in any worse shape ○ By opening that door, we permit other party to do something that if we kept door closed...wouldn't have gotten it into evidence

Relevance: Case-by-Case Determination

○ When talking about case by case determination...another way of saying "never say never or never say always" applies to relevance § Relevance of given piece of evidence depends on circumstance § Depends on circumstances, context, and why offering party offering the evidence § Pieces of evidence-->we don't know relevance instantly until know about circumstances □ Most important circumstance->what's the purpose of offering evidence? What are they trying to prove? ○ General rule is that d testified and have priors...open themselves up to cross-examinations of past criminal records § Character § The problem is old chief was-->situation where old chief's prior conviction had the same name that he was currently on trial for...judge should have sanitized that evidence and impeach § "old chief...isn't it true that in this courtroom you were convicted of felony??" • Allow jury to go to scene of crime? ○ Most judges don't allow it ○ Cole allowed it

Rule 408: Impeachment-->Inconsistency Versus Bias

a. Another common was to impeach a witness is to show that the witness made an earlier statement that was inconsistent with the witness testimony on the state. It is important to understand the difference between these two types of impeachment, because Rule 408 allows parties no use settlements for the first type of impeachment (bias) but not the second (inconsistency) b. The distinction derives from the rule's underlying goal of encouraging settlements c. Introducing settlement-related evidence to show a witness's bias has little chilling effect on those compromise negotiations d. Allowing parties to introduce evidence of inconsistent statements made during settlement negotiations on other hand would greatly impair Rule 408's goal e. Parties sometimes bargain for an apology; to secure agreement a party might be willing to profess blame even when the law would not impose liability. Taken out of context settlement talk might mislead the jury i. Class Notes: 1) AZ disagrees with this 2) Supreme court wanted to say something about lawyer ethics and found this was the proper way to do it 3) Pg. 122 and 123 a) Why does rule 408 draw this distinction between discrediting a witness by showing bias (settlement evidence allowed) and impeaching the witness with prior inconsistent statements (settlement evidence disallowed)? The distinction derives from the rule's underlying goal of encouraging settlements. Introducing settlement-related evidence to show a witness's bias has little chilling effect on those compromise negotiations. The alleged bias often involves a third party who is no longer an active litigant. Bias of this nature, moreover, has strong probative value; if a witness has a financial stake or other strong interest in one party's recovery, the jury should know about that bias when evaluating credibility

Rule 407

a. Bars evidence of subsequent remedial measures b. Sometimes after a plaintiff is injured, the defendant attempts to make conditions safer i. If a p slips on the defendant's icy sidewalk, the defendant might start putting salt on the side walk ii. Arm caught in factory machine, the manufacturer of the machine might change the machine's design to prevent future accidents c. Torts i. Evidence that the d made a change is relevant to prove the p's case; the change tends to prove a fact of consequence, that the original condition or practice was unreasonably dangerous. d. Problems with admitting this evidence i. First, it creates a perverse incentive for Ds 1) A D may postpone fixing a condition that injured the p, just so that the repair can't be used as evidence at trial a) Encouraging Ds to make repairs promptly, without worrying about the effects of those repairs on pending litigation, is an important social policy. ii. Second, juries may give too much weight to evidence of subsequent remedial measures 1) defendant's post-accident conduct often bears little relationship to her pre-accident negligence 2) The P's accident may have revealed a previously unknown danger, one that no reasonable person would have predicted but that the d then remedies 3) Or a defendant who exercised reasonably care before the accident may respond to the p's injury by taking precautions beyond those required by law a) In both of these cases, the d's initial conduct was fully reasonable, but the jury may interpret the d's subsequent repair as an admission of fault iii. Evidence of subsequent remedial measures, in other word, often causes unfair prejudice that substantially outweighs it probative value e. Rule 407 addresses these two problems by restricting the admissibility of subsequent remedial measures i. Encourages prompt repairs-->important social policy f. Rule 407 however does not always bar evidence of subsequent remedial measures i. The rule precludes this evidence only if the p uses the repairs to show that a d was negligent or otherwise at fault ii. Ps may use evidence of subsequent remedial measures to prove other facts of consequent, such as the feasibility of repairs 1) Juries respond strongly to this evidence a) Class Notes: i) Even if something is technically admissible under rule 407--may still admit based on rule 403 ii) Pg. 104-108-->evidence handbook

Rule 408: What is a claim?

a. Courts agree that a claim arises once a complaint has been filed b. Most judges also agree that a claim arises once a party has hired an attorney and threatened to sue i. Class Notes: 1) If there's no claim in existence, rule 408 doesn't apply 2) Lawsuit does not necessarily need to be filed for there to be a claim a) e.g. filed notice of claim b) Claim is read broadly c) A demand letter might be enough i) "dear so and so...you represent company x, my client was on premises on company x; some dude left banana peel on floor...client fell. Hurt back. We hereby demand." One. That's probably enough to be a claim even though not filed in court yet d) What about dispute? i) Sent demand letter...x company might not dispute it; e)

Rule 407: Impeachment

a. Impeachment is the process of discrediting a witness; we will study this concept in greater detail in chapter 17 b. One popular way to discredit a witness is to introduce evidence conflicting with witness's testimony c. Trial judges look for a closer fit between the remedial measure and the testimony it is supposed to impeach. A judge is most likely to admit the evidence when (1) a witness makes a specific representation that conflicts with the subsequent remedial measure, (2) the witness makes an absolute declaration like "the produce was perfectly safe" or (3) the witness making the statement was personally involved in implementing the remedial measures i. Class Notes: 1) Impeaching-->discrediting a witness 1) Impeach a witness on basis of prior inconsistent statement 2) Another way to impeach a witness-->show that they have a bias a) e.g. witness employed by company x; called to stand to testify; witness might have a bias because really like their company; don't want to lose their job b) e.g. d in case; home watching tv with mom...mom testifies..."do you love your son?" bias 2) Problem with rule 407-->trying to impeach ach witness 3) Define impeachment carefully 1) Goode pg. 107 a) Such impeachment should be permitted only where the witness either makes factual assertions thjat are contradicted by the subsequent remedial measure or claims that the produce or condition was the "best" or "safest" that it could be b) Look at examples on pg. 107-108 in Goode i) If president of company says machine safest as it could be and they changed the machine after injury One. Opened door to impeachment evidence because of what he said ii) e.g. expert claimed design of forklift was "excellent" and "proper"-->expert didn't say "best" or "only one possible"-->no impeachment evidence allowed One. Implications for strategy Two. Implications for ethical behavior as opposed to not so ethical behavior First. Don't feed president testimony c) If we say feasibility is always admissible & if we say impeachment questions is always admissible...we create exceptions that swallow the rule and no point for rule 407

Rule 411: Introduction and Policy

a. Liability insurance is good for society because it ensures the individuals and companies are able to compensate others for injuries they cause b. Rule 411 furthers these social ends by barring most evidence of liability insurance in lawsuits. Injured ps cannot introduce evidence of the d's liability insurance, hoping that the availability of insurance will persuade the jury to award a large recovery i. Rule 411 tires to remove discussion of liability insurance from the courtroom c. Rule 411 reflects the prejudice/probative value analysis of Rule 403 i. One could argue that a d's purchase of liability insurance suggests that she is a conscientious indivual who acts carefully in all areas of her life and there less likely to be negligence d. Rule 411 responds to two concerns by broadly prohibiting any party from introducing evidence related to liability insurance i. Class Notes: 1) Rule 411 is about as clear as a rule can be 2) Rule 411 may have some problems applying it a) One of the issues that arises is: what about health insurance? When rule 411 said the word insurance it used one modifier..."liability" a) Health insurance has NOTHING to do with rule 411 b) Other issue-->idemnity agreements

Rule 403 with Rule 410

a. Rule 403 complements Rule 410 in several ways. Courts often invoke Rule 403 to exclude similar evidence offered against the prosecution b. Ds may invoke Rule 403 when Rule 410 fails to exclude evidence offered against them. Under some circumstances, for example, a judge might exclude evidence of statements made during the process of negotiating a guilty plea that was finalized, even though Rule 410 does not protect statements under those circumstances i. Class Notes: 1) Rule 403 is a back up 2) Rule 403 is a back up argument for just about anything a) Both lawyers and judges in the real world have to understand Rule 403 works and be very good with it b) If you are going to be a trial lawyer, you are going to have to need to know how this rule works \

Rule 407: (1) What is a "measure"?

a. Rule 407 bars evidence of "measure that would have made an earlier injury or harm less likely to occur." Action that "would have made an earlier injury or harm less likely to occur" are "remedial" b. What are measures? i. e.g. putting salt on ice sidewalk clearly is a measure ii. Changing the design of a product that caused an injury iii. Car manufacturer responds to gas-tank explosions by switching the tank's location iv. Adding a warning label to a product or changing an existing label v. Taking products off the market or issuing recalls are also measures that fall within Rule 407 vi. A policy may also constitute "measure" 1) e.g. company changes sexual harassment policy vii. Even firing or discipline an employee who was responsible for the disputed injury 1) Class Notes--> a) Change design; change policy at work place-->measure taken by employer that could come under play in Rule 407; "you changed policy...means you know first policy sucked." treat same way as we would if product changed so don't hurt people

Rule 408: Settlements with 3rd parties

a. Rule 408 applies to all settlement discussion, even those conducted by parties who are no longer involved in the case. b. If two Ps sue a defendant and the defendant settles with one of them, the remaining p CANNOT introduce the settlement as evidence of the D's liability. Likewise, if a P sues several Ds and settles with one of them, she cannot use the settlement against the other Ds at trial c. Evidence of third party settlements is also likely to confuse or unfairly prejudice the jury i. Class Notes: 1) Applies when there are multiple ps or multiple ds a) If one d settles, evidence showing that will not help the jury in determining if d liable to remaining p b) e.g. pg. 118-->Hodari Sushi served 4 day old tuna; causation not an issue; each sued hodari for negligently serving rancid food; Hodari offered each P 10,000 and free sushi for a yr i) One p agreed to deal; other rejected offer ii) At trial, Sarah called Katy to ask if she was offered money to settle One. Judge will sustain Hodari's objection and prevent Katy from testifying about her settlement

Rule 408: other Purposes

a. Rule 408 broadly prohibits the use of settlement discussions to prove liability or damages, disprove those elements, or impeach a witness with inconsistencies b. The rule, however, permits use of evidence from settlement discussions for other purposes c. For example, a party may use evidence of settlement discussions to counter an argument that they delayed in pursuing their claim i. Class Notes: 1) Are situations where settlement discussion are admissible a) Pg. 119. Lily case. i) Why admissible? One. Lily argued that they delayed termination of contract; lily opened door by claiming waived complaint First. D wants to counter it with something; showing that they were in settlement negotiations Second. Lily opened the door to it by saying "you continued to do it." other side allowed to rebut that ii) Pg. 120. Gen-x case One. Why admissible? First. Purpose not forbidden by rule 408; not being offered for one of the improper purposes of rule 408 Second. "it's okay!" Third. The party offering it not doing to impeach, disputing validity of claim or amount other side is asking for, outside of rule 408. allow them to bring it in b) Presentation i) Hernandez v. State One. Incident that occurred during state park; Hernandez and family arrived at lake to go fishing; it was dark outside; Hernandez first visited campground to get bait; told bait sold at marina store; Hernandez decides to walk to marina store; takes shortcut; steps over fence and walks down hill; falls over rand gets hurt Two. Hernandez files claim with state Three. At trial, state tried to introduce statements that weren't consistent with what he said in depot; evidence came in First. Jury found in favor of state Second. Appeal upheld admissible of evidence; said that when he submitted claim dispute hadn't arose yet 1. Rule 408 doesn't apply 2. Supreme court reviewed it and said rule 408 would have applied... 1. Said state introduced evidence to show inconsistencies in testimony 2. Allowed evidence 3. Public policy: supposed to promote truthfulness 1. Allowing the use of impeaching evidence puts parties on notice that they should not make false statements or representations 4. Attorney filed it; no response...no dispute yet Third. Did not have a full court; so had court of appeals judge called up 1. Dissent closer to what rule says 2. Dissent hit nail on head in terms of what rule actually said 3. What is boiled down to what supreme court wanted to write about it; worried about lawyer ethics 1. Lesson to lawyers: don't overstate; file complaint...don't overstate 1. What you say on his behalf is binding on him

Rule 408: When do compromise negotiations occur?

a. Rule 408's protection hinges on the existence of both a claim and settlement negotiations. b. Formal negotiations, where both parties meet for the express purpose of discussing settlement, are easy to recognize c. Some of the factors that judges consider when deciding whether a statement occurred during compromise negotiations i. (1) whether the statement was unilateral or occurred during bilateral discussion 1) Latter, stronger ii. (2) whether either party made a concrete offer 1) If attorneys talking and one side or other makes concrete offer...more likely for court to say during negotiations iii. (3) whether attorneys were involved in the discussions and 1) If both lawyers are there...more likely to be a compromise negotiation iv. (4) whether the parties used phrases that are commonly used during settlement discussions v. Class Notes: 1) If other side gets demand letter and reads it and throws it in the wastebasket...there's really no negotiation a) Or lawyer writes back and says "I understand your client's story. Other client has a different story. Not interested in negotiating" 2) If involved in area where want to exclude evidence under rule 408...show all things are present under rule 408; a) Comes down to creative advocacy

Rule 408--Introduction & Policy

a. Rule 408, facilitates civil settlements and negotiations that precede them. The rule protects settlement offers, as well as statements made during settlement discussions, from admission at trial i. Reflects concerns about the unfair prejudicial effect of settlement offers ii. Rule 408 exists, in part, to prevent juries from interpreting settlement offers as conclusive evidence of liability iii. The primary rationale behind Rule 408, therefore, is policy justification to ensure that parties are not inhibited from making offers or statement during the settlement negotiation process. To further the social policy favoring settlements, Rule 408 shields most of that process from admission at trial 1) Class Notes: a) This exception--Rule 408, just like rule 407 is based on policy i) We want to encourage parties to settle their case; so what we do is we say evidence of what you say and do during compromise negotiations are not admitted into court One. But there are some exceptions Two. Civil b) Rule 408(a): Prohibited uses. Evidence of the following is not admissible--on behalf of any party--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction i) Different kinds of impeachment treated differently by this rule c) Rule 408(b): Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Rule 403 with Rule 408

a. Rule 408-If the rule bars admission of proffered evidence, then the judge must exclude that evidence, no other rule trumps Rule 408 to guarantee admission b. When Rule 408 allows introduction of evidence, however, a judge may still determine under Rule 403 that admitting the evidence would cause unfair prejudice substantially outweighing any probative value c. Rule 403 thus offers an important backup for parties seeking to exclude evidence related to settlement negotiations i. Class Notes: 1) Back up rule; might have some evidence that clearly might come in under rule 408; rule 403 is the back up a) Last net More formal discussion-->more likely considered negotiation settlement

Rules 105 and 403: Limiting Instructions and Unfair Prejudice

a. Rules 105 (limiting instructions) and 403(unfair prejudice) complement Rule 407. If the judge admits evidence of subsequent remedial measures for a purpose other than proving liability the d can request limiting instructions. Under Rule 105, the judge must give that instruction if a party timely requests it. The instruction will attempt to explain the permissible use of the subsequent remedial measure to the jury, while restraining them from using that evidence to establish liability. b. The d may believe that a limiting instruction is ineffective in preventing unfair prejudice i. To address this problem, ds often urge the judge to exclude evidence of subsequent remedial measures under Rule 403, even if the evidence is admissible under Rule 407. 1) Judges sometimes agree and exclude the evidence under Rule 403 2) Rule 403 requires the d to show that the evidence's unfair prejudice (the chance that the jury will inappropriately use the evidence as proof of liability) substantially outweighs its probative value (the utility the evidence has in proving disputed ownership, control, or feasibility). In most cases, Judges decide that a limiting instruction will sufficiently reduce the unfair prejudice to admit the evidence. 1) Class Notes: a) Do I ask a court for a limiting instruction? i) Under rule 105, if I ask for it, judge will give it ii) But you might say to yourself..."maybe I create more of a problem if I ask for a limiting instruction or just let it go and worry about it in closing statement..." One. Tactical choice you need to make as lawyer First. Might ask yourself..."why call the jury's attention to it again?" strategic; technique decision for lawyer to make iii) If rule 407 doesn't work...try rule 403 One. Very clear about when subsequent remedial evidence is admissible and when it is not Two. Know the difference between feasibility and impeachment

Rule 410: In the Courtroom

a. Statements made during plea bargaining often provide persuasive evidence of guilt i. What are Plea Discussions 1) The most frequently disputed issue under Rule 410 centers on the definition of "plea discussions" the rule defines a plea discussion as one that occurs with an attorney for the prosecuting authority ii. A plea discussion occurs if: 1) (the d displayed "an actual subjective expectation to negotiate a plea" and 2) That expectation was "reasonable given the totality of the objective circumstances." b. Sentencing i. Remember that the rules do not apply to sentencing proceedings c. Waiver i. Sometimes prosecutors refuse to engage in plea bargaining unless the d agrees to waive his rights under Rule 410, thus agreeing that his statements during the plea bargaining process will be admissible at trial if the negotiations break down. 1) Class Notes: a) Pg. 147-->prosecutors figured out that before they participate in anything that approaches a plea negotiation...I am going to ask you to sign a waiver under 410 b) Prosecutors say "we'll show the court...we don't like this rule and get defendants to waive their rights." if it's not done right...e.g. D signs form and can't read or write and doesn't have opportunity to consult with an atty...judge may later say "this waiver is void." can't read, didn't have lawyer around him

Rule 410: Introduction & Policy

a. The judicial system has a strong interest in encouraging criminal ds to bargain with prosecutors and reach plea agreements b. Courts and commentators recognize that the plea bargaining system holds risks of unfairness for ds c. Rule 410 precludes some evidence of offers to plead guilty, as well as statements made during plea bargaining. In doing so, the rule advances both the social interest in plea bargains and the policy concern for protecting ds who participate in the bargaining process. d. Rule 410 also prevents the jury from hearing unfairly prejudicial information i. Most jurors who hear that a d engaged in plea bargaining will assume that the d is guilty ii. In criminal trials where the prosecution must prove guilt beyond a reasonable doubt, this type of shortcut reasoning is particularly dangerous iii. Rule 410 does NOT exclude evidence of final guilty pleas entered as the result of a plea bargain e. Rule 410 is analogous to Rule 408, which governs the inadmissibility of settlement negotiations in the civil context i. Both protect offers and statements made during settlement negotiations to encourage those settlements and to prevent unfairly prejudicial info from reaching jurors 1) Class Notes: 1) Rule 408 applies to any party 2) Rule 410 applies to admission of evidence against a criminal defendant 3) Pg. 137...Sally Soprano. During plea bargains...Sally admits responsible for crime a) Negotiations fail b) Prosecutor cannot introduce soprano's admission of responsibility c) Prosecutor's statement could be admissible though 4) Pg. 138 a) 4 things that not admissible under rule 410: i) A guilty plea that was later withdrawn... One. Sometimes d will enter plea of guilty and then later think..."damn that was dumb" Two. If the judge permits d to withdraw plea of guilty Three. Prosecutor can't use plea against d Four. ONLY WITHDRAWN PLEA ii) A nolo contendere plea One. No contest Two. Judges who hear guilty pleas will occasionally be presented with a no contest plea: "judge, I'm not going to admit the conduct...going to plead no contest..." just like a guilty plea in sentencing; subject to same penalties...no contest plea is not admissible in a civil case against that defendant iii) A statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or iv) A statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea One. 3 and 4...aren't terribly important; overlap.

Rule 409: Introduction & Policy

a. The rule excludes evidence of offers to pay medical expenses, as well as payment of those expenses, when offered to prove liability b. Rule 409 thus encourages individuals and negotiations to pay medical expenses for people who have been injured c. The rule furthers important humanitarian objectives by removing a factor that might discourage some potential litigants from paying medical expenses of injured individuals. d. The rule also advances important business and judicial purposes. Some businesses find it beneficial to pay immediately the medical expenses of individuals who are injured in connection with their business. These payment (1) promote good customer relations, (2) encourage rapid settlement of any legal claims that develop, and (3) sometimes reduce the extent of damages by treating injuries before they develop expensive complications. e. Rule 409 allows potentials ds to pay medical expenses without worrying about PS using evidence of those payments against them at trial to prove liability. Rule 409 is also justified as a specific application of 403 a. Class Notes: i. Easiest ii. Based on policy: 1) Encouraging individuals to pay medical expenses for others have been injured iii. Rule 409-->reduce damages...prevent future loss; serves public policy 1) Maybe mitigate injury by treating him right away; law wants to further that iv. Rule 409 has a warning 1) Has its limits 2) If it's being offered for a purpose other than proving liability, culpability...can come in for other things. Can't come in to prove liability or responsibility 3) No admissible or permissible to prove liability for injury v. Pg. 130 Hughes 1) Slipped and fell on restaurant floor, claimed hurt because staff kept floor wet; guy says..."I have told the staff not to mop the floor like this when people are in the restaurant" a) Not protected by rule 409

Rule 411

a. What is Liability Insurance? i. The phrase "insured against liability" includes two limits that restrict Rule 411's application. First, the rule only excludes evidence of liability insurance. ii. This type of insurance compensates the policy holder for specified type of damages owed other people 1) e.g., car insurance, medical malpractice iii. Health insurance is NOT a form of liability insurance iv. Rule 411 applies only to liability insurance and courts should invoke it only in that context v. The second question raised by the phrase liability insurance concerns indemnity agreements 1) Indemnity agreements are similar to liability insurance in one respect: under an indemnity agreement, one party agrees to reimburse another party for damages if a specified form of liability arises. In other ways, however, indemnity agreements differ significantly from insurance. They are usually one time agreements between parties do not require the ongoing payment of premiums and do not spread the risk of financial loss over a large number of people vi. For What Purpose is the Evidence offered? 1) Rule 411 only precludes evidence if it it offered to prove fault--that is, if offered to prove whether the person acted negligently or otherwise wrongfully. 2) Any purpose other than proof of liability is permissible under Rule 411 as long as the purpose is relevant to the dispute 3) When evidence of insurance is admitted for limiting purposes, a party may request a limiting instruction. a) Class Notes: a) Judge reads indemnity agreement and decide if works likes liability insurance or not i) Idemnity agreement may or may not work here b) Want examples...look at goode pg. 118

Rule 408's language

d. Broadest reach: What is excluded? i. First, rule 408 applies to ALL parties ii. This means that a party cannot introduce any evidence of settlement offers or negotiating statements, not even evidence of their own offers or statements. The drafters of the rule concluded that introducing any evidence from settlement negotiates might chill settlement discussions iii. Second, rule 408 defines compromise offers and acceptances very broadly iv. Finally, the rule protects all conduct or statements during compromise negotiations, not just the operative offers and acceptance. The common law shielded settlement offers and acceptances but no other statements made during negotiation. e. What is still admissible? i. First, the rule repeatedly uses the word "claim". 1) For rule 408 to apply, the disagreement between parties must have matured into a claim ii. Second, rule 408 requires that the parties dispute some aspect of the claim. If both parties agree that liability exists and also agree on the extent of damages, Rule 408 doesn't shield their discussions iii. Third, to invoke Rule 408's shield, the statements or conduct must occur during compromise negotiations or while compromising or attempting to compromise the claim. A formal settlement conference almost always qualifies as an attempt to compromise the claim, but courts often disagree about whether other communications are part of compromise negotiations iv. Finally, rule 408 excludes statements and conduct made during compromise negotiations ONLY when a party offers that evidence for one of the three purposes specified in the rule. Those purposes are: 1) To prove the validity or amount of a claim 2) To disprove that validity or amount 3) To impeach a witness's testimony through a prior inconsistent statement or contradiction f. Still more limiting language (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. i. Section B underscores the fact that Rule 408 prohibits introduction of evidence for some purposes but no others 1) Confirms that parties may introduce evidence from settlement negotiations for any purpose other than the forbidden ones specified in section a. 2) Second b also offers three examples of other purposes a) The list however is not exclusive ii. Second, the text at the end of subsection (a)(2) allows some settlement statement to be used during criminal trial iii. The new language in Rule 408 allows prosecutors and defendants in criminal cases to introduce evidence from one category of civil settlement negotiations iv. The Advisory Committee explained that it was allowing introduction of evidence from these settlement discussions, despite the strong policies favoring confidentiality of settlement negotiations generally because where an individual makes a statement in the presence of Gov. agents, its subsequent admission in a criminal case should not be unexpected 1) The exception for statements made during attempts to settle regulatory or quasi-criminal investigations cuts against the underlying rationale of Rule 408, which seeks to encourage uninhibited settlement discussions v. Subsection (a)(1) continues to prohibit prosecutors and criminal defendants from introducing evidence of civil settlement offers, promises, and acceptances in criminal proceedings a) Class Notes: i) Notice what a party says during settlement negotiations could be extremely relevant but for policy reasons we say..."yeah that's statement is highly probative...but not allowed in evidence." Rule 408 One. Rule 408 First. Applies to ALL parties Second. It is premised on a very broad definition of phrase "offers and acceptances.." courts generally say if we are trying to determine if something constitutes as an offer and acceptance Third. Rule 408 protects not only offers and acceptances made during negotiations but conduct done and statements made during negotiations!!! 1. IMPORTANT TO REMEMBER ABOUT RULE 408 ii) Rule 408 applied VERY broadly iii) Examples 108-110...evidence all excluded One. Trying to show how broad rule 408 is iv) Rule 408: holes in net One. Applies ONLY to a claim First. What is a claim? Two. Applies ONLY to an actual dispute Three. Evidence offered must have been done or said during compromise negotiations v) Pg. 114

Rule 407: Other purposes: ownership and control

i. As noted in the introduction or not a subsequent remedial measure is inadmissible depends upon the purpose for which it was offered ii. If the p offers the subsequent remedial measure to prove negligence, culpable conduct, a defect in a product, a defect in a prduct's design, or a need for warning or instructions--in other words, to prove liability on the part of the d--the evidence is inadmissible iii. However, if the p offers the evidence for any other relevant purpose. Rule 407 does not bar admission iv. Two of these other purposes are ownership and control 1) If a d claims that it did not own or control the instrument that injured the p, the p may introduce evidence of subsequent remedial measures--not to prove that the original condition of the instrument was unreasonably dangerous, but rather as evidence that the D did not own or control that instrument v. Other purposes: feasibility 1) Rule 407 specifically permits a party to introduce evidence of subsequent remedial measures against a party who disputes "feasibility." 2) A party disputes feasibility when it claims that it could not have remedied a dangerous situation because of economic, physical, or other constraints. Under these circumstances, evidence that the party did subsequently remedy the danger is strong evidence that the change was feasible. Rule 407 therefore allows litigants to introduce evidence of the subsequent remedial measure when an opponent disputes feasibility a) The distinction between "feasibility" and "liability" appears amorphous at best b) It is possible, however to show feasibility without establishing liability i) e.g. a change might have been physically feasible, but economically costly One. e.g. pressure cooker for example...National Presto might show that it always manufacturer cookers with or without locking devices--and that P had her choice of the two--but that the locking cooker costs twice as much 3) Remember that rule 407 does NOT exclude evidence of any measure taken by non-parties a) Class Notes: i) 407 is a good example of a rule that is ALSO a rule of admissibility ii) If offered to prove one of these....judge may admit it One. e.g. pg. 98 clausin slipped on rag; sued company that owned facility and company that occupied the facility One. "we are just the owners have no control over ramp...get remedy from other defendant" Two. Occupants have control over premise Three. Clausin offered evidence that after accident; changed ramp with stairs... object First. "we tried to fix it..." evidence can't come in to show our liability. Judge says..."your right...but purpose of offer is to show that you controlled the property...went to fix it-->control" Second. Typically judge would admit evidence and give limiting instruction under rule 105..."not being admitted to prove that liable for fall; sole purpose of evidence is to demonstrate control" Third. IMPORTANT POINT: if D hadn't raised issue of control, that evidence might not have been admissible. 1. Opening door iii) e.g. 98-104 One. Problematic issues: (1) prove feasibility (2) impeachment One. These are both bugaboos for trial lawyers and trial judges Two. Evidence doesn't come in to prove liability but two of problematic ones (1) feasibility (2) impeachment iv) FEASIBILITY One. e.g. 99 freemont... remember that this becomes admissible evidence only if feasibility is controverted (dispute) One. If the defense disputes feasibility of measure...now P can bring things in wouldn't have been able to Two. If not disputed, evidence stays out Three. Usually has to be disputed...don't technically have to mention it but clear that it's in dispute. Many courts will say it's in dispute until defense lawyer says its in dispute Four. Something could be a dispute but jury could never know it...once raised in front of jury, open door Five. Freedmon-->99 First. Did defense in freedmon dispute feasibility? YES-->claiming no safer way to design it; not possible to create a safer product 1. Opened door to P showing its feasible. 2. Strategy implications: don't ask president of company as defense atty...don't want him to say there's no safer way to design this product. That's going to be a problem. More subtle way to get across to jury that company not negligent nor strictly liable...did everything they could do. Avoid bringing into issue the feasibility of measures 3. Ethical issue as well...lawyer representing d company...ethical implication for him saying..."here's how you will testify when I ask you..." will come back to haunt you. Second. START WITH IMPEACHMENT

Rule 410 Exceptions

i. If a party introduces one statement from a plea bargaining session, another party may introduce additional statements from the same session when fairness requires consideration of those additional statements ii. Second exception, is for perjury prosecutions. The gov. may introduce some statements otherwise protected by the rule when necessary to prosecute a d for perjury or false statement. For this exception to apply, the d must have made a statement "under oath, on the record, and with counsel present." 1) Exception is a limited one 2) If the judge rejects the plea on the d withdraws it, this final provision of rule 410 allows the government to use statements from the in-court examination to prosecute the d for perjury a) Class Notes: a) Pg. 137 Sally Soprano engages in a series of financial transactions that appear to violate the federal money laundering laws. During a plea bargaining session, Soprano admits that she was "responsible" for the transactions. In return, the prosecutor acknowledges that Soprano had good intentions for some of her actions. Negotiations ultimately fair and Soprano proceeds to trial on the money laundering charges. Both Soprano and the prosecutor-attempt to introduce statements made during the bargaining session i) She can admit what prosecutor said to her ii) He can't use her words against her iii) Another rule might figure into this: One. Situations where it only seems fair where prosecutor tells context First. Prosecutor needs to provide context for his statement to her Second. RULE 106-->completeness....judge might be inclined after hearing lawyer's argument and say " shouldn't let you do this..." but will allow it because on statement in a vacuum doesn't mean a lot Third. Rule 106-->suggests that maybe fairest way to do that is put entire convo and put in context; let jury hear whole convo or at least those two parts of it Fourth. First exception on rule 410 has to do with fairness b) Other exception makes a whole lot more sense: "perjury exception" i) Pg. 143...the second exception recognized by Rule 410 is for perjury prosecutions. The government may introduce some statements otherwise protected by the rule when necessary to prosecute a defendant for perjury or false statement. For this exception to apply, the D must have made a statement "under oath, on the record, and with counsel present" One. Make things better if encourage truthfulness during settlement negotiations and disincentive people lying c) Summarize rule 410 i) Biggest issue is what are plea discussions? One. Before rule 410 ius going to apply...we need to know its an effort to settle the case First. In most situations it's pretty easy to tell what a plea discussion is and what it isn't 1. In maricopa county court...very common to have discussion with judge, two attorneys, defendant...usually it's the defense atty who asks for it. May have a client who just isn't getting it. 2. They are on the record; court reporter there to record everything ii) Pretty easy to tell what a settlement discussion is One. Not a settlement discussion-->at scene of crime; d being arrested; talking to cop about plea bargain; police officer says "not the person you talk to about this" d) Pg. 145 Danny Guerrero; Guerroro voluntarily attended a metting with FBI agent; said that he wanted to cooperate and declined with opportunity to call an attorney; he asked Hilley what cooperation would mean; Hilley told Guerrerro that courts usually consider whether a D has cooperated, but the U.S> Attorney Vernier would decide whether to charge Guerrero. Hilley stressed that he had no control over the courts or prosecutor, and could make no promises. i) Guerrero asked to speak directly to Vernier, who came briefly to the FBI aoffice. Verier told Guerrero that his cooperation would be taken into consideration in any future handling of cases involving him, that the decision whether to cooperate was his choice, and that he had the right not to cooperate. After Vernier left, Guerror admitted paying kickbacks to several Guam officers. Guerror tried to claim during plea bargain when state tried to bring convo in One. The district court denied Guerrero's motion, allowing the government to use the contested statements at trial e) Compare with i) Pg. 146 Riyaid Swidan for distribution of LSD One. One judge allows them to use; other judge doesn't Two. Swidan had an attorney Three. Swidan-->had been indicted First. What d subjectively believed Second. In first case, told him not engaged in plea negotiations Third. In swidan...told him interested in deal; Fourth. Has to be objectively reasonable belief on swidan's part Four. Guerro-->not plea negotiations-->timing is the big thing...before indicted Five. Look at all circumstances between whatever happened to parties First. Formality of proceedings Second. Who is actually there (prosecutor there) Third. Say "is there a basis for this d to subjectively believe these were plea discussions?" 1. Then ask..."was his or her believe objectively reasonable? b)

Rule 407: When is a Remedial Measure "subsequent"?

i. Rule 407 applies only to measure that are taken off "an earlier injury or harm." Ds sometimes invoke the rule to protect remedial measures taken after sale of a product to the p, but before the p's attorney. 1) The rule, however, shields only measures taken after the injury itself ii. It is only after a potential p has been injured that a d faces conflicting pressures: correcting a dangerous defect may avoid future injuries, litigation, and liability, but making that correction immediately might compromise the d's interests in any lawsuit filed by the injured party iii. Rule 407 is not designed to shield ds from liability; it targets only a very specific situation in which pending litigation may discourage remedial measures 1) Class Notes: a) Subsequent to what???? The afterward (change subsequent to after) measure that takes place after injury is sustained i) e.g. after someone is burned by vibrating heatpad; if change is made after injury sustains One. If time between purchase and injury...no problem with that.

What 409 entails

i. Rule 409 focuses quite narrowly on offers or promises to pay medical expenses. The rule does not protect any other types of statements, even if they occur in connection with offers to pay medical expenses. ii. Congress and the Advisory Committee wanted to encourage parties to pay the medical expenses of injured parties, not to immunize other statements suggesting fault b. Medical, Hospital or Similar Expenses i. Rule 409 only protects promises to pay medical, hospital or similar expenses resulting from an injury 1) The rule does not encompass offers to pay lost wages, repair an automobile, or compensate an injured party for other types of economic or property damage 2) The rule's drafters, concluded that society's special concern for promoting payment of medical expenses justified excluding potentially relevant evidence from trial c. To prove liability i. Rule 409 only excludes evidence if it is offered for a particular purpose: to prove liability for the injury 1) Class Notes: 1) Pg. 131...Kerry King G. Rule 403 Yet Again a. Even if a medical payment is admissible under Rule 409, an attorney may attempt to exclude that evidence under Rule 403; Rule 403's balancing test serves as a backstop for Rule 409, just as it does for other rules b. Remember that if Rule 409 or any other rule excludes a piece of evidence, then Rule 403 has no role left to play; Role 403 cannot rescue evidence that another rule has rejected. But when evidence passes through the Rule 409 "net" Rule 403 operates as a final check on the fairness of admitting the evidence. In other words, Rule 403 is the final "net" filtering evidence before the judge allows the evidence in the courtroom c. Rule 403 is discretionary; there is no guarantee that a judge will exclude evidence under that provision. i. Class Notes: 1) Rule 403 is a back up 2) Evidence should be excluded on basis of rule 409; rule 403 is a back up

Rule 407: Negligence, Strict Liability, and other Mental States

i. Rule applies to all controversies, including those based on contract, intentional harm, and strict liability ii. A remedial measure is unlikely to protect third parties from injury, but it may mitigate harm suffered by the p iii. Rule 407 applies to any type of action regardless of the underlying theory of recovery 1) Class Notes: a) Does not apply only in negligence cases i) Federal rules have been rewritten in ways that 407 applies to other actions ii) Even though it would typically be a negligence case, could be strict liability case as easily

Rule 407: Remedial Measures by non-parties

i. The central policy behind the rule, to encourage prompt remedial measures, applies only when one party seeks to introduce evidence of a measure carried out by another party. Non-parties have no fear of implicitly admitting liability, so they don't need the incentive offered by Rule 407 1) Class Notes: a) General rule is: 407 does not apply when the remedial measure in question is put into motion by someone not in party to the lawsuit i) e.g. fairweather case pg. 97; fairweather was not a party evidence in question should have been admitted ii) Trial judge didn't let it in but appellate court said didn't effect substantial party's right...not worry about it iii) Rule 407...but we take into account other things One. Judges make mistakes; why reverse a case if no one's substantial rights were hurt?

○ Real Evidence v. Demonstrative Evidence

§ Demonstrative evidence • It is sometimes physical, but, unlike real evidence, is not an object that played a role in the disputed events • Instead parties create demonstrative evidence to illustrate concepts or facts to the jury • Parties may also stage a literal "demonstration" in the courtroom • Demonstrative evidence sometimes poses special problems ○ As such it is open to abuse: a party may re-create an item or interaction in a way that misrepresents the true nature of what happened • Trial judges carefully monitor demonstrative evidence to ensure that it does not mislead or distract the jury § Demonstrative and real evidence can both be very persuasive § Many lawyers do not understand the importance of demonstrative evidence

Rule 402. Class Notes:

§ Evidence is admissible (a presumption) but rebuttable § Sometimes there will be constitutional reasons why evidence is not admissible □ e.g. gun obtained illegally ® Gun is relevant but for constitutional reasons judge may have to exclude evidence § e.g. what husband told wife may be very relevant...but if objection because of husband and wife...inadmissible § Other rules talk about rules that are relevant but for one reason or another, we are saying not going to allow because even though it's relevant, there is a just and proper reason for excluding it § "irrelevant evidence is not admissible" □ Presumption but not rebuttable presumption § Important to know what relevance info is and even though it's presumed admissible...doesn't mean always admitted ○ ***Whenever there is an objection based on relevance, the first question should be "do I object to this?" if I do what am I saying?" judge going to think..."what is the party offering the evidence trying to prove??" another way of saying this..."what is the purpose of the offer of the evidence??" § e.g. prosecutor in criminal case and laid foundation for cop to testify what d told him night...and prosecutor says "mr. jones...tell me what d said to you when you interviewed d?" □ If prosecutor says "tell me what he said..." his opponent knows that he's going to use d's words against him; purpose is to show guilty as day. § e.g. when asking someone to repeat someone someone else said...asking witness to put words in other party's mouth § Anytime there's an objection, "relevance, your honor..." it boils down to..."what is offering party trying to prove?" □ Judge will ask that in side convo with attorneys □ "tell me what you are trying to prove"

OBJECTION: Narrative testimony, Calls for (RUle 611(A)) "Your honor, I object. Counsel is asking a question that calls for narrative testimony."

§ This is a real problem for a runaway witness □ "will you tell us your name and witness" □ Witness answers and starts in on what he witnessed...that's a narrative and unproper...object § If we allow witnesses to narrate, we are probably running a very strong risk of them saying something that is inadmissible evidence

Rule 403: Videos and Photos

• A real time video tape of an event may be damaging evidence, but it is not unfair. As long as the affected party has an opportunity to cross-examine the filmmaker about perspective and editing, and to explain to the jury how the videotape might convey an erroneous impression, the tapes seems to be as accurate as--or even better than--eyewitness testimony. • But if a photo or video shows only the effects of the crime, giving no indication of how the crime occurred or who was responsible, the possibility of unfair prejudice is more substantial. ○ The judge must decide whether the jurors' emotional reaction to the devastating effects of a crime will push them to blame the defendant, overlooking any exonerating evidence. This is the most unfair prejudice that photos, videos, and other visual aids may cause. § e.g. admit picture of wife's dead body, showing where bullet entered her v. not admitting picture showing children's bloody handprint • Courts will almost always admit some photos of the victim to illustrate elements of the crime, but will exclude photos like the ones showing the children's hand, which greatly increase emotional reactions without adding new information. ○ Class Notes: § Video can be very good evidence § Anytime a judge excludes relevant evidence on basis of rule 403, the judge should say why. She needs to say why she is excluding relevant evidence § If she's denying the evidence...she should say why too § Rule 403 has a specific purpose-->comes into place in many situations...not just relevance e.g. hearsay § Morale for trial judges: protect your record; explain yourself why admitting or denying evidence § Judges has to protect record § Pg. 74-->McRae case shows whether probative value is outweighed by unfair prejudice § "this person died as a result of an accident" if he had plead a different defense...the photos at issue may have never been introduced at all; he opens the door to evidence that arguably might not be admissible if he used a different defense □ Depends on context; depends on nature of offer □ Now prosecutor can say..."I know these photos are gory, but proves that not an accident. Because shows bullet through head" □ Not outweighed § Pg. 75-->bloody handprints on victim; photos § "lawyer's sole purpose in offering these photos is to inflame the jury, therefore, I'm going to find that whatever value those pics have is substantially outweighed by danger of jury being inflamed and highly prejudice against D" □ Prosecutor could probably come up with theory why pics are relevant and should be admitted; but most judges will see right through that and say "sorry...not admitting a pic that shows children's fingerprints on mom's body...doesn't prove anything" ® e.g. what if the defense is..."he didn't kill the mom, someone else did and there's finger prints on her body to prove it." ® Now it's a different argument; judge may not rule differently; change context of what judge needs to know before can make a ruling § Rulings dependent on context and rule in which evidence is offered Photo is only evidence of crime; only way state can prove certain things...then it's a different situation for the judge; changes equation

Rule 403: Flight

• Court carefully analyze the circumstances surrounding flight, as well as other evidence available at trial, in judging admissibility of this evidence under Rule 403 ○ Class Notes: § Pg. 79-->Benedetti...why not allow flight evidence to be introduced? § Wasn't particularly relevant § Defense counsel says "not admissible...I'll make an argument that opens up the door to his so called flight" □ Once defense counsel opened door...it becomes admissible □ Passed rule 401 case; also pass rule 403 test

• What is evidence?

• Evidence means testimony, writings, materials objects or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. • Evidence includes all the info given to the trier of fact during trial except for the questions and statements made by the attorneys and judges. • AZ Jury instructions: • Sent in email last week • In a jury trial, jurors are the finders of fact; judge is finder of law

Circumstantial Evidence

• It is any evidence that requires the jury to make an inference connecting the evidence with a disputed fact. Direct evidence, in contrast, requires no inferential bridge; it directly establishes a contested fact • In actuality, circumstantial and direct evidence are opposite ends of a spectrum rather than separate categories of evidence • All evidence depends on some inferences • Happily, its not important to draw a sharp line between the types of evidence because the distinction has no legal effect • The Rules of Evidence draw NO distinction between direct and circumstantial evidence. Circumstantial evidence can support a verdict as effectively as direct evidence does; both civil judgments and criminal convictions may rest entirely on circumstantial proof • In practice, it is important to concentrate on the inferences that link your evidence to the disputed facts than to worry about the artificial distinction between direct and circumstantial proof • You should always search for evidence that requires the fewest possible inferences, whether you call that evidence "direct" or "circumstantial"

Rule 403: Stipulations

• Our discussion of Rules 401 and 402 revealed that a party's stipulations does not eliminate the relevance of evidence offered by another party. Facts related to an element of a crime or civil crime, in other words, are "of consequence" even if the parties do not actually dispute the element. The presence of a stipulation, however, may affect the balance of unfair prejudice and probative value under Rule 403. • Old Chief ruling includes three significant points related to Rule 403 generally and to the specific effect of stipulations under that rule. ○ First, the court noted that Rule 403's balancing test requires the court to evaluate unfair prejudice and probative value in the context of the full evidentiary record. The availability of alternative evidence, including stipulations, affects the Rule 403 balance. ○ Second, the court observed that with respect to most elements of a crime, the prosecution can choose to present detailed evidence rather than accepting a defendant's offer to stipulate ○ Finally, however, the court concluded that the calculus differs in the special context of the felon-in-possession statute. The statute itself does not distinguish among previous crimes; conviction of any felony bans the defendant from gun possession. The probative value of introducing evidence of the nature of the previous crime, therefore, is low. § Class Notes: § Pg. 81--Old Chief---offered to stipulate that he had been convicted of a felony, because he did not want the gov. to present specifics about his prior crime □ Get in this more in rule 609?? 6. Undue Delay, Wasting Time, and Cumulative Evidence 1. e.g. 83; Libby...gov after saying not contest importance of other matters; what if gov. did it anyway a. Judge says..."okay gov. I said I wouldn't allow him to present evidence for every other issue...." you have now opened the door. Now evidence will come in. specific circumstance could have an affect on judge's ruling

Rule 403: Damaging Evidence

• Parties frequently claim that evidence is "unfair" simply because it will damage their case. ○ Courts routinely reject these claims ○ Evidence that strongly supports the position of one party and damages the other is not "unfair," it is just persuasive § Class notes: § Pg. 73-->Jose shows committing crimes; video. Unfairly prejudicial □ Court says "wrong." It's highly probative...greater probative value harder to demonstrate that probative value is substantially outweighed be danger of unfair prejudice Objection is sustained or overruled...never "dismissed"

Rule 403: Socially and Undesirable Behavior

• Parties sometimes attempt to introduce evidence of an opponent's unconvential lifestyle, hoping that the juror's biases will lead them to view the opponent's negatively. • Judges exclude some of these attempts under Rule 402, because the evidence simply isn't relevant • Some courts have allowed evidence of a lavish lifestyle to establish motive. • Recent cases also explore the admissibility of evidence revealing a party's racist attitudes and behavior. In some lawsuits, those attitudes are "of consequence" because they bear directly on claims of discrimination or other wrongdoing. In other cases, the evidence arises more tangentially and parties argue that the evidence of racism is more prejudicial than probative. • The courts are very sensitive to the prejudicial impact of evidence that a party has expressed racist attitudes. On the other hand, where the evidence relates directly to the crime or other litigated issue, courts will admit it. ○ Class Notes: § Racist attitudes or racist behavior...are they relevant? § It depends. § Depends on context, purpose for which its being offered § e.g. pg. 77 Bowman-->statements in club's constitution; judge should have taken out statement about who is welcome and who is not § Have to be careful here because rule 403 is intended to be a tool to exclude parts that could unreasonably cause unfair prejudice § Rule 403-->balancing test; doesn't start out as a balance...relevant evidence is permissible....but party that wants it to be excluded have to show shift in balance □ Depends on context; purpose of offer § e.g. pg. 78-->evidence is probative and highly inflammatory; cases say that we have to give parties chance to prove case; § Law says prosecutor has right to prove case; but rule 403 says we can stop her from doing it in a way that will be highly prejudicial to the D § In felton...prosecutor says this goes to motive □ Defense atty says "I looked up elements and didn't see motive anywhere" □ "The State need not prove motive, but you may consider motive or lack of motive in reaching your verdict" □ Motive is not an element of any crime ® Chances of conviction higher if motive shown

Rule 403 Notes:

• Rule 403 applies a counterweight to this generosity; it recognizes that some evidence, although relevant, might have some unfair effects if introduced at trial. • Rule 403 empowers judges to avoid these problems by allowing them to exclude relevant evidence that is problematic in any of these ways. • Rule 403 allows the trial judge to close the doors against some types of evidence. • Litigants invoke 403 quite often • The rule's broad language makes it applicable to almost any evidentiary issue. ○ Rule 403 frequently serves as a backstop for unsuccessful objection under other, more specific rules. ○ CLASS NOTES: Rule 403 assumes evidence is relevant § No reason to worry about it until we know evidence is relevant § Rule 403 may provide one or more reasons for excluding it even though relevant

Rule 403: Bench Trials

• Rule 403, like the other Federal Rules of Evidence, applies to both jury and bench trial. • Under Rule 403, it would be awkward to exclude evidence offered in a bench trial on the ground that the evidence is unfairly prejudicial or confusing; the judge would have to conclude that he or she could not fairly evaluate the evidence. Parties, therefore, do not invoke this objection when a judge serves as the fact-finder. ○ They may, however, still object to evidence as a waste of time or unduly cumulative. ○ Class Notes: ○ Judges frequently exercise their discretion under Rule 403 to exclude evidence that will unduly inflame the jury's emotions, distract it with tangential issues, or otherwise prevent fair consideration of the case. Under limited circumstances, Rule 403 may allow a criminal defendant to avoid the intro of damaging evidence by stipulating to an element of the crime. Judges also invoke the rule to limit the time devoted to trial. ○ Despite this broad grant of discretion, Rule 403 honors the Federal Rules' generous view of admissibility by restricting the judge's power to exclude relevant evidence to those cases in which unfair prejudice or another concern "substation ally outweighs" the evidence's probative value. When probative value more evenly matches prejudice, the rule favor admissibility. § VERY IMPORTANT CHAPTER Remember there is not always a right answer ○ As long as following call of question, you'll be fine

Rule 602 notes

• Rule 602 does prevent witnesses from testifying to matters that they heard about from other but did not observe firsthand. • Personal knowledge implies that a witness is capable of apprehending an event, remembering it, and describing it to others. If a witness lacks ability to fulfill these functions--because of youth, mental impairment, or any other reason--the witness may not have sufficient personal knowledge to testify ○ Even in such cases, however, the preference towards admissibility usually prevails § Class Notes: □ Witnesses must always have personal knowledge ® Except for expert witnesses □ Even with the strongest rules there are exceptions □ Very few rules apply to all cases □ Rule 602--personal knowledge part of foundation ® When testifying ask them "where were you on day ____" -->start laying foundation ® Have to lay foundation that she has personal knowledge about that before she states any testimony □ Pg. 165 Darwin ® Drawin is on trial for stabbing Xavier to death on the evening of March 6. Darwin's neighbor Louise testifies that, at about 8 p.m. on March 6, she saw Darwin enter his home holding a knife. Darwin's counsel objects that Louise lacks personal knowledge of the stabbing ◊ Louise lacks personal knowledge of the stabbing but she has personal knowledge of a relevant piece of circumstantial evidence: the fact that Darwin was holding a knife around the time that the stabbing occurred. She can testify to that fact □ Pg. 167 Arvin Adler and Betty Babcok □ Pg. 168 McCrary-El ® Jerry McCrary-El, a prison inmate, claimed fthat three prison guards beat him in his cell without provocation. He sued the guards and offered the testimony of Antonio Hones who was housed in the neighboring cell. Jones claimed that a crack at the corner of his cell door, which measured about an inch and a half, allowed him to see into the prison corridor and witness part of the confrotation between McCrary-El and the guards ◊ The district judge examined a diagram of the cells, listened to Jones's description, and concluded that Jones had not been able to see the relevant parts of the confrontation. No reasonable person, moreover, would believe that Jones could have seen "anything of relevance." The judge excluded Jones's testimony as lacking personal knowledge, and the court of apeals upheld this decision Judge cole would have let him testify and cross examine him

State Law

• The federal rules of evidence apply to all civil trials in federal court, whether those claims are based on state law (as in diversity cases) or federal law (as in federal question ones) • Whenever state law supplies the elements of a civil claim or defense, which occurs most often in civil diversity actions, the court must determine competency under that state's law

Rule 603 notes

• The first words out of any witness's mouth is an oath or affirmation • The oath or affirmation impresses the witness with the seriousness of the courtroom testimony and reminds him of the obligation to speak truthfully. ○ The oath or affirmation also lays the basis for a perjury prosecution if a witness lies on the stand • Rule 603 govcerns oaths or affirmations in federal court. ○ The rule is quite open-ended, allowing witnesses to choose between an oath or affirmation and imposing no particular format for either. § An oath traditionally includes the word "swear" and a reference to "God" § And affirmation is a promise to tell the turth that omits religious references and uses the word "affirm" rather than swear ○ Judges sometimes invoke this rule to prevent a very young or mentally inform witness from testifying. ○ Rule 603 establishes a minimal standard of competency that all witnesses must meet § Judges use this power very sparingly □ They are more likely to allow the witness to testify ○ If a witness refuses to make an oath or affirmation that satisfies Rule 603, then the judge will exclude the witness's testimony. ○ Rule 603 does not require a witness to utter particular magic words to satisfy its requirement. § The drafters attempted to craft a requirement that would accommodate any set of religious beliefs or non-belief. Even if these beliefs are unfamilar to trial judges, they should try to find a way to accmodate them. RULE 603. OATH OR AFFIRMATION TO TESTIFY TRUTHFULLY Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience. § Class Notes: □ Goode...pg 168 □ Just care about witness is impressed upon their conscience the duty to testify truthfully ® Hope that with some witness will be duly impressed by proceedings

Competence: Who Can Testify?

• The rules take a permissive view toward admitting evidence • The rules allow jurors to hear the testimony of almost any witness who has knowledge relevant to the case. • The juror, rather than inflexible rules, decide whether to believe the witness The Basic Rule: Everyone is Competent. RULE 601. COMPETENCY TO TESTIFY IN GENERAL Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision. • The federal rules allow even young children and mentally incompetent adults to appear as witnesses; it is up to the opposing counsel to expose any weaknesses in their credibility or testimony ○ e.g. pg. 158 § EXAMPLE: The United States Charged Herman Harris and several codefendants with numerous drug-related crimes. Esker Dodson testigied for the prosecution against the defendants. Dodson admitted that he had used substantial amounts of heroin for several years and that he had ha a fix within two days of his testimony. After his first day of testmony, Dodson was hospitilized and received Demerol for pain relief. When he returned to the stand, the judge frewuently had to remind Dodson to speak up; the witness was also "bouncing" and "nodding on the stand" • Rule 601 includes no standard for defining competence. ○ "every person is competent" except as otherwise provided in the rule § Class Notes: □ Judges allowed to make call whether witness competent or not e.g. child too young, witness high as a kite ® Judge will talk to kid and ask different questions ® "you know the difference between a truth or a lie?" if says no...judge might say "not competent" □ Rule 601 starts with rebuttable presumption that all witnesses called to court are competent to testify ® "let everybody testify" unless there's a reason not to let them testify ◊ If witness doesn't have whole perception or ability to recall what happened or can't communicate what they say or heard, let the cross-examiner point those things out ◊ That's the way the rule resolves the issue ◊ If witness meets competency but has low threshold...let other side test ability to communicate

Rule 403: The Word "May"

• The simple word "may" signals that judges possess considerable discretion under Rule 403. ○ A judge "may" exclude evidence under that rule but, then again, a judge may not. Judges frequently differ in how they apply Rule 403; one judge will admit evidence that another judge would find prejudicial. • The role of judicial discretion under Rule 403 means two things for litigators. ○ First, appellate courts rarely reverse Rule 403 rulings. ○ Second, and equally important, the discretionary nature of Rule 403 offers opportunities for persuasive advocacy. § Explaining prejudice or probative value concretely is the key to winning a Rule 403 motion. § A trial attorney who focuses the judge's attention on the specific unfair harm stemming from a piece of evidence may block the evidence from admission § CLASS NOTES: court may exclude evidence if probative value is substantially outweighed by a danger of one or more of the following: § Unfair prejudice § Confusing the issues, misleading the jury § Undue delay, wasting time, or needlessly presenting cumulative evidence □ Unfair prejudice most common; less common § Most of the cases you will see deal with bullet number 1-->unfair prejudice § Rule 403--> "may" "substantially outweighed" "unfair prejudice" □ If evidence is relevant and there's something that makes it prejudicial...that's usually not enough to convince a judge to exclude it ® Because rule 402 relevant evidence is presumably admissible ® So rule 403 says the danger of unfair prejudice has to substantially outweigh probative value ◊ Weighing process judges are called to do every time this issue arises § Rule 403 says evidence is relevant if it hurts party against its whom its offered...we assume party a is trying to prejudice party b □ Fact that evidence prejudices a party doesn't mean it's excluded □ The danger of unfair prejudice MUST SUBSTANTIALLY OUTWEIGH PROBABTIVE VALUE BEFORE SUSTAINED Memorize this rule

Rule 606 Notes

• This rule, analogously to Rule 605, recognizes that it may be uncomfortable for a lawyer to challenge the competence of a juror before other members of the jury • Occasionally, a party asks a juror to appear at a subsequent trial and testify as a witness about something he or she observed in the previous trial. Rule 606 does NOT bar this testimony because it prohibits jurors from testifying only "at the trial" of the case in which the juror is sitting. If a juror in one case testifies as a witness in a different case, Rule 606(a) imposes no automatic bar • Notice, however the counsel in this case did not use the former juror's testimony to attack the prior verdict ○ The rules of evidence impost strict limits on when jurors can offer testimony that would undermine the validity of a verdict they rendered • Rules do not restrict the lawyers who represent the parties. ○ The federal rules leave open the possibility that a lawyer might testify on behalf of the party she represents, or that opposing counsel might call the lawyer to the stand. Ethical rules, however, discourage lawyers from testifying in cases In which they represent a party, and lawyers rarely take the stand in cases where they appear as counsel.

Rule 605

□ Class Notes: ® Rule 605 and 606-->very rarely arise in courtroom ◊ Govern questions of judges and jurors testifying as witnesses in a case over which particular judge or juror is presiding } Judge Cole has never seen this happen } General rule is: NO; especially with the judge - Problems with objecting to what judge says - Judge is there as a neutral arbitrar; that destroys picture of judge as neutral } There has to be a very good reason for judge to testify over case presiding ◊

Rule 407 □ Basic reason for excluding evidence of subsequent remedial repairs is

□ First it creates a perverse incentive for defendants. Gives incentive to fix it. Encourage a manufacturer to fix something that hurt people-->KEY TO RULE 407 □ Second, juries may give too much weight to evidence of subsequent remedial measures Jury may say "holy smokes, they changed it...must have been wrong in the first place. Add some money to punitive damages."

○ "your honor, we will stipulate that victim john jones passed away...:

○ "your honor, we will stipulate that victim john jones passed away...: § Might do that to save time; more likely to do it as a tactic...hope the other lawyer isn't thinking and says "ok we'll accept stip." she has the right to prove her case anyway she cares § As a general rule, judges will not allow one side to force the other side to stipulate away their proof □ e.g. civil case; d has a psychiatrist that comes into court and testify about condition; you know p is going to want to have their expert...battle of the experts. Jury base decision on what experts say □ Lawyer a says...when lawyer starts to law foundation "we'll stipulate that dr. jones is an expert in this area.." ® Other lawyer would most likely say..."I would prefer jury to hear all of their qualifications..." jury would be more impressed with hearing all qualifications § e.g. homicide cases; prosecutor has 35 pics of body of victim; blood all over everything; more pics from autopsy...some prosecutors think that the more pics they produce...the stronger their case gets □ Most defense attorneys don't want that nor judges § Don't get to stipulate away the opponent's proof

• Rule 101. Scope; Definitions:

○ (a) Scope. The rules apply to proceedings in the United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101. § Do not apply to state court proceedings...all states have the authority on their own to craft & apply their own rules of evidence § These rules apply only in federal courts

• Rule 1101. Applicability of the Rules.

○ (b) To Cases and Proceedings. These rules apply in: § Civil cases and proceedings, including bankruptcy, admiralty, and maritime cases § Criminal cases and proceedings; and § Contempt proceedings except those in which the court may act summarily

• Rule 1101 Applicability of the Rule.

○ (d) Exceptions. These rules--except for those on privilege--do not apply to the following: § (1) the court's determination, under Rule 104(a) on a preliminary question of fact governing admissibility; □ Relieves judges from applying the Rules of Evidence when deciding a preliminary question of fact. Judges make this type of determination whenever a party challenges the admissibility of evidence; those rulings may occur before or during trial § (2) grand-jury proceedings; and □ The prosecutor exerts considerable control over these proceedings, sleecting what evidence to present. No judges presides over these inquiries and in the federal system neither the potential defendant nor any defense attorney attends. □ Granting flexibility at this stage allows prosecutors to build a case; after hearing evidence that might not be admissible in court, the grand jury can subpoena more reliable forms of evidence § (3) miscellaneous proceedings such as: □ Extradition or rendition □ Issuing an arrest warrant, criminal summons, or search warrant; □ A preliminary examination in a criminal case □ Sentencing; □ Granting or revoking probation or supervised release; and □ Considering whether to release on bail or otherwise ® Focus on grand jury & sentencing ® Class notes: why might rules not apply to administrative agencies? ◊ Comparative informality of an administrative hearing } Federal agencies have lots of power but they are less formal } Free to adopt own rules of evidence ® Why might the authors say doesn't apply to grand jury? ◊ No adversarial system; no judge over it ◊ preliminary stage in criminal justice process; only there to determine if probable cause ® Why did authors say don't apply to sentencing? ◊ In almost all cases, we have the jury doing the sentencing ◊ But if the judge is the person, we let the evidence come in and let the judge deicde what to consider and what not to consider ◊ Rules of privilege are EXTREMELY IMPORTANT!!! • Rule 1101. Applicability of the Rules. ○ © Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding. § Even when the federal Rules of Evidence do not apply in their entirety, the rules governing privilege apply. If the privilege rule did not apply to grand jury proceedings, bail hearings, and other proceedings exempted from the federal rules, the confidentiality promised by those privileges would be breached.

Rebuttable Presumption

○ Any time a statute or case says "it will be presumed" or "we presume" what we are talking about is something that has evidentiary importance § e.g. criminal case...P is presumed innocent; it is a rebuttable presumption...if it a conclusive presumption...why have a trial? • Relevance is case dependent

• Jury instructions

○ Before or after give instructions? § It depends on how complex the jury instructions might be § Most lawyers would rather that they instruct first...prosecutors especially and plaintiff too □ Why? ® They get the last chance to talk ® They want the last thing the jurors to hear is what he said ® Strategically would want to be the last heard • Judgment doesn't issue until after case; ○ Sometimes lawyers try to use for settlement ○ In criminal case, we have juries decision but defense can file motion for new trial, motion for verdict notwithstanding the evidence...we let the defendant file motion for new trial § Only then will we proceed to sentencing...no charge until judge says "found you guilty of...."