EVIDENCE: Cases/Concepts

DEFINING TESTIMONIAL STATEMENTS AFTER CRAWFORD

"[pretrial statements or functional equivalent] declarant would reasonably expect to be used prosecutorially" "extrajudicial statements...contained in formalized testimonial materials" statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for later trial" "solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact." look to structure and formality of setting/statement Ask if directed to or prepared by government officials

United States v. Knox (Ct. Mil. Rev. 1992)

FRE 412 weighing the constitutional argument of the ∆, who contended that he was mistaken and believed that the victim consented due to her reputation as a "bimbo." The trial court only admitted two specific incidents that directly involved both parties, and not her general reputation as a "bimbo." To allow ∆ to bring in this evidence would have allowed him to do what the rape shield statute seeks to prevent —- e.g. portray the victim as a bad person who got what she deserved. The conviction and sentence are affirmed.

United States v. Stevens (3d. Cir., 1991)

"reverse FRE 404(b) evidence" An armed Black man robbed and sexually assaulted two white military police officers on the Fort Dix base. One of the victims identified the ∆ from a photo in the police station (while the other victim was not so sure). ∆ sought to introduce evidence of another robbery which had also occurred at Fort Dix (where the victim was a Black man). In that case, the victim did not identify ∆ as his assailant; therefore, ∆ sought to introduce evidence re: how cross-racial IDs are less accurate in an attempt to discredit the white victim's ID. Opinion of the Court: ∆'s argument is an example of reverse 404(b) evidence. Precedent demonstrates that when a ∆ is offering such evidence, prejudice to the ∆ is no longer a factor, and the standard of admissibility should therefore be lowered. Therefore, the admission of reverse 404(b) evidence should depend on balancing its provocative value against other considerations (such as waste of time/confusing the jury, etc.). Here, the lower court erred in not admitting ∆'s reverse 404(b) evidence (the probative value of the second robbery was not substantially outweighed by the prospect of wasting time/confusing the jury). HOLDING: Therefore, a ∆ may introduce reverse 404(b) evidence so long as it is probative under Rule 401, and is not substantially outweighed by Rule 403 considerations. (e.g. ∆ must demonstrate that reverse 404(b) evidence has a tendency to negate his guilt, and that it passes the Rule 403 balancing test).

FIVE STEPS TO REFRESH A WITNESS' MEMORY

(1) Establish that the witness does not recall the answer to a question. Q: What else was stolen from your store? A: I don't remember. (2) Describe the writing she wishes to use to refresh the witness's recollection and ask if that writing would refresh the witness's recollection. Q: I have here a copy of the police report that you filed the day after the burglary. Would seeing this help refresh your recollection as to what else was stolen? A: Yes, I think it would. (3) Show the writing to the witness. The witness will examine the writing and put it aside (usually giving it back to the attorney). (4) Ask whether the writing has refreshed the witness's recollection or helped her to remember. The witness should answer yes, and then she can answer the original question from her refreshed recollection. (5) Either before or during this process, the attorney must be sure to give the opposing counsel a copy of the writing.

A PROSECUTOR'S 6A OBLIGATIONS

(1) May introduce non-testimonial hearsay as long as those statements comply with the hearsay rules. Despite declining to answer proposition #1, generally the Sixth Amendment does not limit non-testimonial hearsay. *What is "testimonial"? (2) May introduce testimonial hearsay if the statements comply with the hearsay rules and the declarant is available as a witness. *Is the declarant available? (3) If testimonial and declarant is unavailable, may only offer statement if the defendant had a prior opportunity to cross-examine. *Was there a prior opportunity to cross-examine?

THE "DYNAMIC DUO" OF EXCITED UTTERANCES

(1) The declarant must speak while excited by a startling event. *The standard is subjective rather than objective (e.g. not asking if a "reasonable" person would be excited, but rather, examining if the declarant themselves was excited) (2) Statement must relate to the startling event (e.g. going beyond a basic description).

Five Gordon/Brewer Factors

(1) The nature of the prior conviction's crime (2) The time of the conviction and the witness' subsequent history (e.g. have they been "rehabilitated?") (3) Similarity b/w the past crime and the charged crime (4) Importance of the ∆'s testimony (5) The centrality of the credibility issue

RULE 803(5): REQUIREMENTS FOR ADMISSIBILITY

(1) The out-of-court statement must appear in a "record." (2) Witness testifying in court must have either created or adopted the record. (3) Knowledge/Memory/Timeliness (Fresh) (4) Vouch for accuracy (5) Witness must no longer recall the information contained in the record "well enough to testify fully and accurately." (6) Witness reads the document into the record.

To satisfy 804(b)(6), a court must find by a preponderance of the evidence that...

(1) The ∆ engaged or acquiesced in wrongdoing; (2) That was intended to render the declarant unavailable as a witness; and (3) That did in fact render the declarant unavailable as a witness.

THE "BIG THREE" FOR PRESENT SENSE IMPRESSIONS

(1) subject Matter: applies only to descriptions or explanations of an event or condition, not to more complex analyses or interpretations. (2) Perception: declarant must have personally perceived (3) Timing: declarant must make statement while perceiving the event or "immediately after" the event

THE FIVE ASSUMPTIONS OF 609 MENTIONED IN THE ROBERTS ARTICLE

(1) ∆'s prior conviction means they actually committed the crime [but, innocent people plead guilty all the time, especially if they're in pre-trial detention/are facing a long sentence if convicted at trial/could have depleted resources to fight the charges] (2) People without convictions have not committed similar crimes [but, look at racial disparities b/w races re: certain arrest rates — esp. for drug possession, as Black people have disproportionately high rates of arrests/convictions despite white people having higher rates of drug use; it is important to note who the police are deciding to stop/arrest] (3) The conviction was the result of a particular character trait [basically underlies the entire FRE 609 Rule] (4) That character trait helps to predict the likelihood that the ∆ will lie on the stand [but, there is no empirical evidence to support this assertion] (5) The evidence provided to the jury will help them assess that likelihood [studies show that jurors don't change their minds re: ∆'s "truthfulness" when they hear of their prior convictions; rather, juries change their mind more re: ∆'s guilt of the present charges

United States v. Iron Shell (8th Cir. 1981)

FRE 803(4) prosecution offered testimony of a doctor under FRE 803(4) in an assault w/ intent to rape case. ∆ argued that the doctor's questions/victim's responses were "not reasonably pertinent" to diagnosis or treatment. IRON SHELL TWO PART TEST (1) Is declarant's motive consistent with the purpose of rule? (2) Is it reasonable for the physician to rely on the info in diagnosis/treatment?

Lannan v. State (IN, 1992)

*note* - FRE Rules 413-415 were not enacted at this time; IN, similar to NY, is a common law state (e.g. ≠ follow the Fed. Rules of Evidence). Here, ∆ was convicted of molesting a young girl after the jury heard testimony from another young victim that ∆ had molested her. ∆ wanted IN Supreme Court to abandon the "depraved sexual instinct" exception (which allowed evidence about prior uncharged acts of child molestation to be admitted into evidence). Rationale: the court notes two reasons for the DSI exception: (1) "recidivist rationale" [believing that sexual predators reoffend at higher rates than other criminal populations] and (2) it helps bolster the testimony of young victims [recognizing that children may be reluctant to come forward re: these crimes due to shame/embarrassment, and are likely terrified to testify in court]. Generally, the justification is to protect children, who are "the most sexually vulnerable in our society." [However, should note that children are highly impressionable/not the most reliable with memory — this creates a hurdle for the state in prosecuting these difficult cases] Opinion of the Court: Regarding the first justification, social science finds that sexual predators are no more prone to repeat their crimes than other criminals. Furthermore, there is no reason why a high rate of recidivism would justify admitting this sort of evidence for sex crimes, when a high recidivism rate does not do so for other crimes — for example, there are also high rates of recidivism among those who violate drug laws, but evidence of other crimes is not admissible in those cases. With regard to the second justification, while it may have been the case in the past that juries and judges would not believe the testimony of a child victim of sexual crimes without some corroborating evidence, now awareness that child molestation does occur is more widespread. HOLDING: Rule 404(b) provides a better basis for testing evidence of prior bad acts re: child molestation than DSI does, and the court adopts Rule 404(b) in full.

State v. Kirsch (NH, 1995)

*note* — FRE 413-415 were not enacted at this time, so this state court is following FRE 404(b). Here, ∆ was accused of molesting girls at his church, where he was a youth group leader and often preyed on girls who came from disadvantaged backgrounds. Parties' Arguments: ∆ argues that the trial court erred in admitting evidence of his PBAs (other accusations of uncharged molestation incidents). The state argued that ∆'s PBAs spoke to his motive, intent and common plan/scheme under FRE Rule 404(b). Opinion of the Court: notes how the crux of the state's argument re: motive appears to show ∆'s desire for sexual activity w/ certain victims (e.g. a propensity). The evidence also does not show intent, as the prosecution's rationale for a showing of intent is the same as for motive—intent to target the same type of victim.. Finally, the evidence does not show a common plan. A common plan does not mean the commission of similar sexual assaults. For a common plan to exist, there must be some overall scheme of which each crime is a part. There is no such overall scheme here. The evidence merely shows Kirsch's propensity to commit the same type of crime repeatedly. The exceptions under FRE Rule 404(b) requires more than what the state has presented. HOLDING: rejects the state's arguments re: admitting ∆'s PBAs under motive/intent/common plan/scheme.

A ∆ CAN APPEAL ON 609 GROUNDS WHEN....

...they actually testified at trial (in Luce, the ∆ did not testify after a judge's preliminary ruling to admit ∆'s prior convictions) ...the prosecution introduces evidence of their prior convictions (in Ohler, the defense atty introduced the ∆'s prior convictions on direct examination). However, note that some ∆s may choose to introduce their prior conviction to curry favor with the jury, so as not to appear that they're hiding something/untrustworthy.

WHY WAS THE RAPE SHIELD DRAFTED?

Common law used to demonstrate a belief linking chastity and veracity (e.g. believed women who were having sex were liars, and was concerned about men being falsely accused). ---Privacy: "[Rule 412] aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment, and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process." ---Encouraging reporting: "By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders." "The enactment of this legislation will eliminate the traditional defense strategy . . . of placing the victim and her reputation on trial in lieu of the defendant [and] end the practice . . . wherein rape victims are bullied and cross-examined about their prior sexual experiences[making] the trial almost as degrading as the rape itself." -then-Senator Joe Biden

United States v. James (9th Cir., 1999)

FRE 401 ∆ gave her daughter a gun, who then shot and killed mother's abusive, drunken boyfriend who was attacking another man. The deceased had told ∆ about his violent past (e.g. a robbery where he held a knife to an old man's throat). ∆ claimed self-defense. Jury asked if there was any proof re: deceased's past to corroborate ∆'s testimony/beliefs at the time. HOLDING: Excluding the evidence/documents of Ogden's prior violent offenses was prejudicial toward ∆. These records were "absolutely necessary" to ∆'s defense in order for the jury to believe that Ogden had committed these violent acts; these records proved that what ∆ had testified to had actually occurred, thereby corroborating her testimony and her fearing Ogden during the incident in question. Note also how James presents a materiality problem — proof that Ogden really had committed the robbery seems probative of something, but how was that evidence material to ∆'s claim of self-defense? (James had never actually seen the documents/court records of Ogden's violent past).

State v. Bocharski (AZ, 2001)

FRE 401 ∆ was on trial for stabbing a woman. At issue were two exhibits (photos of the deceased's head with the brain removed; a metal rod penetrating the opening of the skull to demonstrate the angle of the stab wounds). The appellate court must determine if the two photos in question were unfairly prejudicial to the ∆. Opinion of the Court: it must be assessed whether photos "inflamed" the jury. The appellate court finds that the two photos had "little tendency to establish any disputed issue in the case." Thus, the two photos should not have been admitted by the trial court. However, ∆ did not show that these two photos had a "particularly adverse effect on the jury" (nothing demonstrates that the jurors' consideration of the evidence was affected by these objectionable photos. Therefore, the error in admitting the two photos did not contribute to/affect the jury's verdict.

Commonwealth v. Serge (PA, 2006)

FRE 403 ∆ was accused of murdering his wife, but he claimed self-defense (alleged that she came at him w/ a knife). The prosecution, after consulting with several experts, sought to introduce a computer-generated animation (CGA) to show the trajectory of the gunshots (the animation did not have sound, or transpose the ∆'s face onto the figure). ∆ argued that the cost of the CGA demonstrated that it should not be admitted, as it cost the entire amount of the defense he could afford. Opinion of the Court: the court conducts a Rule 403 analysis, believing that a CGA should be deemed admissible if (1) it is a fair and accurate representation; (2) it is relevant pursuant to FRE 401/402, and (3) it has a probative value is not outweighed by the danger of unfair prejudice. Thus, the CGA was a strict depiction of the prosecution's forensic evidence and the expert opinions. The CGA's content was neither inflammatory nor unfairly prejudicial. Additionally, the judge provided cautionary instructions to the jury prior to showing the CGA in court (e.g. insisting the jury not mistake the CGA for fact/reality - example of Rule 105 Limiting Instructions — to restrict the evidence to its proper scope). Therefore, the CGA should have been admitted, as its probative value was not substantially outweighed by prejudicial effect.

United States v. Myers (5th Cir., 1978)

FRE 403 ∆ was accused of robbing a bank in FL (had also been the prime suspect in a PA robbery); prosecution sought to introduce evidence re: an incident in CA where ∆ appeared to "flee" from FBI agents trying to arrest him. ∆ argues that there was insufficient evidence to support the accusations of flight. Opinion of the Court: appellate court notes that flight evidence derives from four "inferences": (1) from ∆'s behavior —> flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Here, the court is concerned w/ the fact that ∆'s alleged "flight" in CA, because it is not clear which crime he was conscious of, as it occurred following both the FL and PA robberies. HOLDING: Because of the inherent unreliability of evidence of flight, and the danger of prejudice that may entail from its use, a flight instruction to the jury is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences. Here, the evidence relating to the CA incident did not meet that standard.

Old Chief v. United States (SCOTUS, 1997)

FRE 403 ∆ was charged w/ felony possession of a handgun (his prior felony conviction was for assault causing serious bodily injury). At issue was admitting information re: ∆'s prior conviction. ∆ offered a stipulation to the prosecution (wanted to tell the jury that he had been convicted of an offense warranting 1+ year(s) in prison), without saying the name/nature of his crime, as he was worried that that information would be unfairly prejudicial. The prosecution disagreed, and argued that the name/nature of ∆'s prior conviction was essential for the gov't to present their case's narrative to the jury (e.g. prosecution should be able to present their case/evidence as they see fit) Opinion of the Court: engages in a Rule 403 analysis; worries that admission of the name/nature of ∆'s prior conviction would cause the jury to generalize ∆'s earlier "bad act" into bad character, and take that as meaning ∆ would be "increasingly likely" to commit the current crime before the court (e.g. propensity to commit the crime). Evidence of prior bad acts weighs too much with the jury. The court notes the primary element for the statute in this current case is possession of a gun, and the felon element is secondary. Thus, the legislative history does not demonstrate any concern w/ the specific name/nature of the prior offense, beyond what is necessary to place it within the broad category of qualifying felonies. Although the name of the prior offense may have been technically relevant, it addressed no detail in the definition of the prior conviction element that would not have been covered by ∆'s stipulation. HOLDING: the risk of unfair prejudice did substantially outweigh the discounted probative value of ∆'s prior conviction, and it was an abuse of discretion to admit the record when ∆ offered to stipulate. Note #1: Old Chief is an example of racism toward Native Americans in the legal system (recall controversial remarks made by ∆'s own counsel about it being "common" for Blackfeet Indians to drink to the point of passing out). Note #2: Old Chief offered a stipulation as to his legal status, not to the "gist" of the gov'ts case (recall Campos child porn example from class - court allowed admittance of two child porn images b/c the prosecution needed to display a rich narrative).

Olden v. Kentucky (SCOTUS, 1988)

FRE 412 ∆s, Black men, were accused of raping a white woman. ∆s sought to introduce evidence re: victim's living arrangements (as she lived with her boyfriend, who testified at trial) — specifically, to show an angle that victim could be lying out of fear that her boyfriend would think she cheated on him. Parties' Arguments: ∆ contended that trial court's refusal to allow him to impeach the complainant's testimony re: evidence supporting a motive to lie deprived him of his 6A right to confront witnesses against him. Opinion of the Court: Under the Confrontation Clause of the 6A, a criminal ∆ has a right to confront witnesses against him and impeach those witnesses by, among other things, exposing a witness's bias and motive to lie. A reasonable jury might have received a significantly different impression of the witness' credibility had defense counsel been permitted to pursue his proposed line of cross-examination. Here, the complainant's testimony was crucial to the state's case. Her story, which was directly contradicted by ∆, was corroborated only by her boyfriend, whose impartiality could've been influenced. Thus, the judgment is reversed and remanded.

People v. Zackowitz (NY, 1930)

FRE 404 (note that the FRE was not drafted at this time / NY does not follow the FREs, but is the same concept) ∆ was accused of murdering a man who allegedly insulted his wife; at issue was the requisite level of mens rea [prosecution argued that ∆ premeditated the shooting, because he went back to his apartment to retrieve one of his weapons]. Accordingly, prosecution introduced into evidence ∆'s other weapons, and harped on his bad character ["he was a person criminally inclined"]. Here, Judge Cardozo authored the majority opinion. Opinion of the Court: courts must be cautious when the prosecution attempts to introduce propensity evidence [e.g. "since Zackowitz was criminally inclined/had so many guns, he was more likely to commit the violent act in this case"], because juries typically assign too much weight to such evidence. Also, there is a danger that upon hearing such evidence, a jury will convict the ∆ of the crime at hand even if the requisite evidentiary standard is not met — e.g., propensity evidence is too prejudicial. Furthermore, propensity evidence can confuse/distract the jury. For example, if the prosecution introduces evidence that ∆ is a "bad guy," the defense's focus will shift from trying to prove ∆'s innocence on the current charges to "hey, I'm not a bad guy!" Note also that even limiting instructions provided to the jury may be insufficient to dissuade the jury from assigning heavy weight to the "propensity box." HOLDING/QUIMBEE: evidence that has no relevance other than to demonstrate a ∆'s propensity to commit a crime is admissible to prove the ∆'s guilt. DISSENT: believes evidence of ∆'s other guns should have been admitted, because the possession is a part of the history of the case; a.k.a. "an ADA's favorite words - 'your honor, it completes the narrative" Note also: Old Chief was not a Rule 404 case; there, the prosecution was trying to prove an element of the crime (e.g. felony conviction) and was not attempting to introduce propensity evidence.

United States v. DeGeorge (9th Cir., 2004)

FRE 404(b) ∆ had previously owned three boats (two were damaged, one was stolen). ∆ was currently trying to insure another boat, but didn't think he'd be covered due to his past bad luck w/ yachts. So, ∆ inflated his financials and was eventually charged with "scheme by defraud." The prosecution sought to introduce evidence that ∆ collected insurance payouts on the prior three boats; however, the trial court did not permit this, and only allowed the prosecution to note that ∆ had previously owned three boats. The prosecution argues that the prior three boats were "inextricably intertwined" w/ the current case, and should've been admitted under Rule 404(b). Opinion of the Court: there are two categories of evidence than can be considered "inextricably intertwined": (1) evidence of prior bad acts may be admitted if the evidence "constitutes a part of the transaction that serves as the basis of the current criminal charge" or (2) when it is necessary for a prosecutor to offer a coherent/comprehensible narrative at trial re: the charged crime. Here, the case fits into category #2. The concealment of ∆'s prior losses had an important factual connection to several counts contained in the current indictment. The jury would not have understood the relevance of ∆'s "sham transactions" and concealment w/out hearing at least some explanation as to why ∆ could not obtain insurance in his own name.

United States v. Trenkler (1st Cir., 1995)

FRE 404(b) ∆ was accused of building a bomb, which killed a Boston PD officer. Prosecution sought to introduce evidence of a bomb ∆ built in 1986 to show that ∆'s M.O. was demonstrated in the 1991 bombing. ∆ conceded to making the 1986 bomb, but denied making the 1991 bomb. At trial, both parties had expert witnesses; the prosecution's testified that he had "no doubt whatsoever" that the same person built both bombs, whereas the ∆'s believed there were too many differences b/w the two bombs to conclusively say whether the same individual built both bombs. On appeal, ∆ argued that the trial court erred in admitting the evidence pertaining to the 1986 bombing, contending that the two bombs were not similar enough to demonstrate an M.O. Opinion of the Court: there is a two-part test to determine the admissibility of Rule 404(b) evidence: (1) determine whether the evidence has some special relevance and does not just show the ∆'s criminal propensity and (2) conduct a Rule 403 balancing test to determine if the probative value of the evidence is/is not substantially outweighed by the danger of unfair prejudice. Parties arguing that certain evidence should be admitted need to show they are "sufficiently idiosyncratic" (however, there does not need to be an exact match between 2+ events; rather, there needs to be a "conjunction of several identifying characteristics"). Here, the gov't presented more than just a single similarity (in both cases, remote-controlled bombs were placed under cars, and used to benefit friends of the ∆). HOLDING: the trial court did not err in admitting the evidence of the 1986 bombing; due to the numerous similarities between the bombs' components/design/technique while also being combined w/ similar M.O. and close geographic proximity b/w the two bombs, the evidence sufficiently supports the inference that the same person built both bombs. Also important to note that the trial court used careful limiting jury instructions (told jury not to infer ∆'s guilt based upon his involvement in the 1986 bombing).

Tuer v. McDonald (MD, 1997)

FRE 407 π sued on behalf of her husband's death (was supposed to have heart surgery, but it was postponed; husband ended up dying after doctor (McDonald) discontinued Heparin medication, and chose not to restart it). Following husband's death, hospital changed Heparin protocol (allowed patients to receive Heparin right up until surgery, rather than discontinuing its use for it to metabolize in patient's system). Here, the appellate court had to judge whether the lower court erred in excluding evidence re: hospital changing protocol following husband's death. At particular issue is a comment from π's doctor, who said it would've been "unsafe" to restart the Heparin at the time in question (π is asking: was it possible to continue the Heparin in a medically safe/successful way? Distinguishing b/w whether an action is feasible (e.g. possible) vs. feasible (actually safe to do). Opinion of the Court re: feasibility - the only fair reading of McDonald's testimony is that the protocol then in place was the product of a professional judgment call that the risk to π (of having the surgery while there was still a significant amount of Heparin in his blood) outweighed the prospect of harm. The assertion that a given course of Tx would be unsafe, in the sense that it would likely cause harm to the patient, demonstrates that it would not be feasible. Note: if the "door" gets opened via feasibility, then you can impeach a witness. Opinion of the Court re: impeachment - note that impeachment occurs when a party is trying to introduce evidence to discredit the witness (e.g. when a witness `contradicts their prior sworn statements); here, the court does not believe that the change in protocol was admissible to impeach Dr. McDonald's brief statement that restarting the Heparin would have been unsafe. It is clear that McDonald made a judgment call based on his knowledge and experience at the time. HOLDING: the fact that the protocol was changed following π's death in no way suggests that McDonald did not honestly believe that his judgment call was appropriate at the time. The only reasonable inference from this testimony was that Dr. McDonald reevaluated the relative risks in light of what happened to π.

United States v. Biaggi (1991)

FRE 410 ∆ was offered an immunity deal by the prosecution to testify against his co-∆s regarding any knowledge of wrongdoing that occurred at his company. But, ∆ did not take the deal, and proceeded to trial. ∆ sought to introduce evidence of the immunity deal to prove his "consciousness of innocence." Gov't argued that evidence re: immunity deal should not be admitted, as Rule 410 bars evidence of similar plea agreements. Opinion of the Court: the probative effect of plea negotiations and immunity deals are markedly different when they are sought to be introduced by a ∆ against the gov't. When a ∆ rejects an immunity offer, his action is probative of a state of mind that's devoid of guilty knowledge. This is stronger than showing a rejection of a plea offer, as immunity is an opportunity "to preclude all exposure to a conviction and its consequences." HOLDING: the probative force of a rejected immunity offer is clearly strong enough to render it relevant; the trial court erred in excluding this evidence, as it denied ∆ a fair trial since it constituted evidence of ∆'s innocent state of mind. Thus, evidence that a ∆ rejected an immunity offer is not barred by FRE 410.

State v. Smith (LA Supreme Court, 1999)

FRE 412 ∆ was accused of molesting his wife's granddaughter. ∆ sought to introduce evidence re: victim's prior false allegations of molestation against her cousin, which she later recanted. The trial court did not admit the evidence, and held that the prior false allegations fell under FRE Rule 412. ∆ appealed, arguing that the prior false allegations did not fall under FRE Rule 412, as they were not actually examples of the victim's prior sexual behavior (see FRE Rule 412(a)(1)). Opinion of the Court: the ∆ sought to prove for impeachment purposes that the victim, in the past, had made false allegations regarding sexual activity. Because the evidence ∆ attempted to introduce did not concern the victim's prior sexual behavior, we conclude that prior false allegations of sexual assault by the victim do not constitute "past sexual behavior" for purposes under the rape shield statute. Thus, Rule 412 is inapplicable in this scenario.

Tanner v. United States (SCOTUS, 1987)

FRE 606 Represents the system's unwillingness to look past the jury's verdict to expose whatever flaws in reasoning might lie "behind the curtain of the deliberation room." In this case, multiple jurors fell asleep during the trial, as they had ingested drugs/alcohol. Arguments: ∆ counsel sought to introduce juror testimony, and claimed that it was not barred by FRE 606(b). ∆ also assert that testimony re: juror drug/alcohol use during the trial was compelled by their 6A right to a competent jury. Opinion of the Court: SCOTUS emphasizes the legislative history behind Rule 606(b). The Senate Judiciary Committee emphasized how "public policy requires a finality to litigation," while also noting how jurors would not be able to "function effectively" if their deliberations were open to scrutiny by the defense or the public. SCOTUS rejects the ∆'s 6A argument, as the 6A right to an unimpaired jury provides several safeguards throughout the trial process. HOLDING: Justice O'Connor, writing for the majority, holds that Rule 606(b) does not cover the ingesting of drugs/alcohol by jurors. She highlights that the jurors voluntarily ingested the substances. Notes that it is not clear if the jury system could survive such efforts to perfect it (i.e. could juries survive post-verdict inquiries?). Thus, jurors cannot testify about the conduct of other jurors during deliberations, including their intoxication.

Pena-Rodriguez v. Colorado (SCOTUS, 2017)

FRE 606 ∆, a Hispanic man, was on trial for sexually assaulting minors. One of the jurors, a former LEO, made several racist comments re: Hispanic men, how they treat women, etc. A juror came forward following the trial to report the racist behavior. Arguments: ∆ makes a 606(2)(a) argument (believes that juror's prejudice/racist statements were so overt and problematic that it impacted the other jurors in the decision making process). Opinion of the Court: Justice Kennedy, writing for the majority, distinguishes Tanner — in Tanner, the drug/alcohol abuse was essentially a one-off (does not believe the jury system is so ripe with misbehavior). However, racial animus is a more frequent-occurring evil within American society, and by extension, the jury system. Kennedy also notes how the legislature alone cannot confront racial animus; rather, the Court must also step in (e.g. 14A rulings against racial discrimination). HOLDING: Where a juror makes a clear statement indicating they relied on racial animus to convict a ∆, the trial court must consider the evidence surrounding the juror's statements. There must be a clear showing that 1+ jurors made statements exhibiting overt racial bias, and that these statements of racial animus were a "significant motivating factor" in the juror's vote to convict. Here, SCOTUS is making an additional, narrow exception under Constitutional grounds, and not on Rule 606(b) grounds. Believes the jury system can "survive" this exception, as the Court is not attempting to perfect it, but rather to ensure that our legal system can provide equal treatment under the law for all.

United States v. Brewer (TN, 1978):

FRE 609 ∆ was charged w/ one count of kidnapping, amongst other charges. The prosecution proposed introducing ∆'s prior criminal convictions re: four specific acts (including one conviction for kidnapping) for impeachment purposes, should the ∆ take the stand. ∆ argues that his convictions should be excluded under FRE 609(b). Here, the court relies on factors #1-3 (violent crimes generally have no direct bearing on ∆'s honesty; this ∆ had continued "trouble w/ the law"; and the prior kidnapping charge is too similar to the current kidnapping charge, and should therefore, not be admitted due to propensity evidence concerns. Ultimately, the court held that the prior kidnapping charge was inadmissible under FRE Rule 609(a), as its probative value could potentially be outweighed by prejudice (e.g. the jury could think "oh, he's done this before, so it's more likely that he did it again").

United States v. Barrett (1st Cir. 1965)

FRE 801(d)(1)(A) ∆ was charged w/ possession of stolen stamps. ∆ sought to introduce two witnesses, who overheard "Buzzy" state that ∆ had no involvement in the heist, but the trial court excluded these witnesses. On appeal, ∆ contended that the witnesses, although via hearsay, should have been admitted to impeach Buzzy's credibility through prior inconsistent statements ("PIS"). Opinion of the Court: To amount to a PIS, the statement has to have "some indication" that the fact is different from the witness' statement at a prior time (e.g. does not have to be "exactly" what the witness had discussed prior — similar to what the trial court argued in excluding these two witnesses). Thus, the crux of ∆'s defense were these two witnesses who would implicate Buzzy rather than ∆ in the crime. The lower court erred in excluding these two witnesses.

Tome v. United States (SCOTUS, 1995)

FRE 801(d)(1)(B) ∆ was accused of sexually abusing his daughter amidst a bitter custody/divorce battle w/ his ex-wife. ∆ theorized that his ex-wife and other adults had coached the victim into reporting the allegations. To rebut ∆'s claim, the gov't sought to introduce six witnesses who claimed that the victim had confided in them about the abuse — particularly, under FRE 801(d)(1)(B), as these witnesses rebutted the claim that the victim's testimony was guided by an improper motive. The trial court admitted these six witnesses. Opinion of the Court: the prior consistent statement is irrelevant for refuting such a charge unless the contested statement was made before the source of bias/motive/influence arose. Thus, FRE 801(d)(1)(B) embodies the common law pre-motive requirement. Here, the court notes that if the Federal Rules permitted prior statements as substantive evidence to rebut these questions of improper motive, the emphasis of the trial would shift to OOC statements. Therefore, FRE 801(d)(1)(B) permits the introduction of a declarant's consistent OOC statements to rebut a charge of recent fabrication or improper influence/motive, if those statements were made before the alleged recent fabrication.

Johnson v. State (TX, 1998)

FRE 803(5) at a murder trial, state wanted to present a statement from one of the surviving victims/witnesses to the incident (Taylor). While on the stand, Taylor was hostile to the prosecutor's questions, and claimed not to remember signing the statement he had provided to police. ∆ argues that the trial court abused discretion by admitting Taylor's signed statement. Opinion of the Court: FRE 803(5) permits a record of a witness' prior personal knowledge to be entered into evidence when the witness currently has "insufficient recollection" to enable them to testify. If admitted, the record may be read into evidence, but may not itself be received as an exhibit. Regarding the fourth factor (below), it is sufficient for the witness to testify that they remember having recorded the fact correctly. At a minimum, the witness can recognize their signature on the recollection, and thereby believe their statement to be correct b/c they would not have signed the statement had they not believed it to be true at the time they signed it. Here, Taylor never guaranteed that his memory was correctly transcribed, or that the assertions contained within it were true. Therefore, it was inadmissible hearsay.

United States v. Gray (4th Cir. 2005):

FRE 804(b)(6) --- forfeiture by wrongdoing at issue were the admittance of Robert Gray's police complaints, where he alleged his wife (∆) and her boyfriend had threatened to kill him / displayed firearms. It was alleged that ∆ killed Robert Gray and her other husbands for life insurance payouts. ∆ argues that Robert's statements were inadmissible, and that she did not intend to make him unavailable as a witness at her trial; rather, was just trying to kill him for the insurance pay-out. Ultimately, the 4th Cir. deemed Robert's statements admissible under FRE 804(b)(6

Michelson v. United States (SCOTUS, 1948)

FRE Rule 404(a)(2)(A) ∆ was accused of bribing an IRS agent, but claimed that he only paid the agent because he was threatened by him. ∆ called five witnesses to testify on his behalf re: his upstanding character. On cross-examination, the prosecution asked the witnesses if they were aware of ∆'s prior arrest for counterfeit trademarks. Opinion of the Court: After a ∆ has put his character at issue by calling witnesses to testify to his good reputation, it opens the door to the prosecution cross-examining the witnesses about that reputation and providing contradictory witnesses. Specifically, the prosecution may cross-examine a witness about knowledge of the ∆'s prior arrest after the ∆ has put his character at issue, but only for the purposes of refuting evidence of the ∆'s good character or to test the sufficiency of the witness's knowledge about the ∆. Generally, the prosecution may not bring up this type of character evidence unless it goes to an ultimate issue in the case. However, once the defendant opens the door by bringing forth positive character evidence, the prosecution may bring its own evidence as to the reputation of the defendant in the community as well as for the limited purpose of testing the qualifications of the witness to reliably testify about the defendant's reputation. HOLDING: In this case, because ∆ voluntarily opened the door to character evidence by calling witnesses to testify about his good reputation in the community, the prosecution was permitted to respond with evidence of poor character to refute that testimony. Although the crime ∆ was on trial for (bribery) is not the same as receipt of stolen goods, they both stem from poor character traits that the witnesses claimed the ∆ did not have. As a result, it was proper to admit evidence of Michelson's prior arrest because if proved, it would weaken the claim that ∆ had a reputation as a good, law-abiding citizen in the community.

Halloran v. Virginia Chemicals, Inc. (NY CoA, 1977)

FRE Rule 406 — Habit; Routine Practice Evidence of a person's habitual conduct in certain situations is admissible to prove that the person acted in conformity with those habits. (e.g. ∆'s witness should have been permitted to testify if they saw π use an immersion coil while handling Freon on several occasions [not just one occasion]).

United States v. Whitmore (D.C. Cir, 2004)

FRE Rule 608)(b) FRE Rule 608(b) ∆ was arrested for felony possession of a firearm, but contended that the arresting officer (Soto) planted the gun at the scene. ∆ sought to introduce three witnesses to testify re: Soto's character for untruthfulness under FRE Rule 608(a) (one was a reporter, who spoke to Soto's reputation as a liar, but did not personally know Soto; another was a defense atty, who spoke to Soto's reputation as a liar in the courtroom; and the third knew Soto from the neighborhood, and could speak to Soto's reputation in their community. ∆ also sought to introduce evidence re: Soto's suspended drivers license, which he did not reveal to his superiors in the police dept. (and went against police policy). Opinion of the Court: the district court did not abuse its discretion in prohibiting ∆'s three witnesses from testifying (their "ties" to Soto were not strong enough so they could speak about his reputation in their communities — in particular, the court noted that the defense atty witness could have been biased, as he accused Soto of lying in a case against the witness's former client). However, FRE Rule 608(b) allows parties to attack the credibility of a witness by cross-examining them about specific instances. Here, the district court abused its discretion by ruling the evidence of Soto's suspended DL as inadmissible. Soto was the sole eyewitness providing evidence in support of ∆'s firearm conviction. Prohibiting all proposed lines of cross-examination deprived ∆ of any genuine opportunity to challenge Soto's credibility (who was the only witness who testified that ∆ possessed the gun in question). Therefore, we vacate ∆'s conviction. Note: under FRE Rule 608(a), the evidence re: a witness's character for (un)truthfulness must pertain to that trait in particular, and not other traits. Additionally, FRE Rule 608(b) imposes two limits: (1) the specific instance of conduct must be probative of a witness's (un)truthfulness and (2) the claim may not be proved by extrinsic evidence.

Mahlandt v. Wild Canid Survival & Research Center, Inc. (8th Cir. 1978)

FRE Rule 801(d)(2)(D) at issue are three statements: two made by Mr. Poos, who had Sophie the Wolf in his possession; and the other occurred during corporate meeting minutes, where the Center discussed the legal aspects of the wolf "attack." Opinion of the Court: the trial court was wrong to exclude the two statements made by Mr. Poos, as per FRE Rule 801(d)(2)(D), since Poos made these statements as an agent of the Center (note that it was not FRE Rule 801(d)(2)(C), as the Center did not specifically authorize Poos to make these statements). Additionally, the meeting minutes also should have been admitted as well. However, the meeting minutes could not be used against Mr. Poos, as he was not present at the meeting. See also Problem 7.15 in the Casebook for a similar scenario.

Bourjaily v. United States (SCOTUS, 1987)

FRE Rule 801(d)(2)(E). ∆ was charged w/ conspiracy to distribute cocaine. At issue were statements made by one Lonardo, who told another party in the drug conspiracy that he had a "friend" who could be available to pay for the cocaine — the friend wound up being ∆. Defense counsel challenged Lonardo's statements under FRE Rule 801(d)(2)(E). HOLDING: when the preliminary facts relevant to FRE Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence. Courts, in making these preliminary factual determinations under the rule, may examine the hearsay statements sought to be admitted. The lower court properly considered the statements of Lonardo and the subsequent events in finding that the gov't had est. by a preponderance of the evidence that Lonardo was involved in a conspiracy w/ ∆. Thus, Lonardo's out-of-court statements were properly admitted as evidence. Note also: the rule was amended in 2011 to include the following statement: "The statement must be considered but does not by itself establish . . . the existence of the conspiracy or participation in it under (E)."

Rationales for 804(b)(2) & Problems w/ 804(b)(2)

Rationales for 804(b)(2) One about to "meet her maker" is as unlikely to lie as when under oath. Dying people lack incentive to lie Some intuitive appeal; owe it to deceased to voice final words Problems w/ 804(b)(2) Applies to all declarants (including atheists) Dying Declarations may be motivated by revenge, etc. Intuitive appeal is also problematic; may carry too much weight with jury. Memory and perception may be least accurate when under extreme stress (Liang, 503)

Williamson v. United States (SCOTUS, 1994)

FRE Rule 804(b)(3) [statements against interest]. Here, Harris (an affiliate of ∆) made a statement to police after being pulled over. Harris implicated ∆ in a cocaine-trafficking operation. The officer Harris confessed to was called to testify as to what Harris told him about Williamson's role. ∆ appealed, claiming this admission was improper. Opinion of the Court: based upon the Advisory Committee's notes, the principle behind FRE Rule 804(b)(3) points to a narrow reading of the rule. Harris' entire statement should not have been admitted into evidence. Although some portions of the statement were self-inculpatory (a.k.a. statements against interests), the entire statement was not (e.g. portions were "collateral"). Thus, FRE Rule 804(b)(3) would not permit non-SIS, even if they were included in the broader narrative within an SIS. Note: SCOTUS dissected the individual components of Harris' statement, rather than just looking at the "big picture." Connection: recall in an earlier class how statements surrounding an ID may be excluded, if they are extraneous of the actual ID; similar rationale here — just stick to the actual parts of the statement which are self-incriminating/against interest, and don't admit anything extra.

Shepherd v. United States (SCOTUS, 1933)

Predated the FREs, but really, concerning dying declarations a.k.a. FRE 804(b)(2) wife confided in her nurse that she believed her husband (∆) had poisoned her whiskey, and felt that she was dying. At issue was wife's "deathbed" statements. Opinion of the Court: To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death. Here, Mrs. Shepherd made the statement in question to her nurse almost three weeks before she actually died. When Mrs. Shepherd made this statement, she appeared to be recovering from her ailments to a certain degree — e.g., she did not appear "in the shadow of impending death."

Sea Captain v. Nuclear Chairmam: Example Problems

SEA CAPTAIN Not Hearsay Why? The captain did not have an audience when he was checking the ship's seaworthiness prior to departure; therefore, when he brought his family on the boat, he did not intend to assert anything. NUCLEAR CHAIRMAN Hearsay Why? The chairman wanted to assert that the blast site was safe in front of an audience of reporters. Thus, he intended his actions to communicate something. Essentially, the key difference b/w these two scenarios is the out-of-court actor's sincerity. Since the sea captain had no audience, and did not intend to assert anything, he could not have been lying. However, the nuclear chairman did have an audience of reporters, and he intended to persuade his observers that the blast site was safe by traveling there with his family (even if he did not actually believe it to be safe).

STATEMENTS FOR FRE 803(4) --- MEDICAL DIAGNOSES

Statements must be made for a medical diagnosis or treatment. Statements must be reasonably pertinent to diagnosis or treatment. Statements must fit within one of the three categories listed by the rule: (1) accounts of medical history; (2) descriptions of past or present symptoms or sensations; or (3) reports about the "inception" of the condition or its "general cause."

There is no Crawford problem if...

The statement is not offered for the truth (Crawford p.603 n.9) The declarant appears for cross-examination at trial (Crawford p.603 n.9) The declarant is unavailable to testify but the ∆ had a past chance to cross-examine the declarant about the statement (Crawford p.601, 609) The ∆ forfeited her confrontation right by wrongdoing intended to prevent declarant from testifying (Giles v. California) The statement is not testimonial (Whorton v. Bockting)

Advisory Committee Notes: List of Possible Corroborating Circumstances for 804(b)(3)

The timing and circumstances under which the statement was made; The declarant's motive in making the statement and whether there was reason for the declarant to lie; Whether the declarant repeated the statement and did so consistently, even under different circumstances; The party or parties to whom the statement was made; The relationship between the declarant and the opponent of the evidence; and The nature and strength of independent evidence relevant to the conduct in question.

Shepherd v. United States (SCOTUS, 1933) [pt. 2]

although case occurred prior to the adoption of the Federal Rules, similar to FRE Rule 803(3) ["Statements of Then-Existing Condition"]. "Dr. Shepard has poisoned me" was inadmissible as a statement of then-existing mental, emotional, or physical condition because it was used by the prosecution not as proof of the wife's thoughts or feelings, but rather, as proof of somebody else's actions.

Commonwealth v. Warren (MA, 2016)

Victim of a B&E reported the suspects who stole his backpack to be three Black males wearing dark clothing/hoodies. Police spotted ∆ (a Black man) with one other person near the scene, and attempted to question him — but, ∆ ran off. Here, the Supreme Judicial Court of MA is judging whether the police had reasonable suspicion to stop ∆. Opinion of the Court: flight alone is not enough evidence for police to stop an individual (e.g. flight is not necessarily probative of a suspect's state of mind/consciousness of guilt). Notes how a recent study demonstrated that Boston Police had a robust history of racial profiling Black men with stop/frisk. Ultimately, court finds the police lacked reasonable suspicion for stopping ∆. Important to Note: certain communities (e.g. POC generally, but Black men particularly) may distrust the police due to unchecked police brutality. Hence why some ∆s may "flee" LEOs - fearing for their lives, or wishing not to be harassed.

United States v. Johnson (5th Cir., 1978)

a case of "dueling experts" — the prosecution put on witness di Pianelli, who claimed to be able to identify the origin of marijuana purely based off appearance alone [e.g. smoked marijuana 100s of times, had dealt it, etc.], whereas the defense put on a university professor who refutes his claims. ∆s objected to lower court deeming di Pianelli an "expert." Opinion of the Court: A court can include "knowledge obtained by experience" under FRE 702(a). Note: My Cousin Vinny example, where Marisa Tomei is qualified an "expert" based upon working in her father's auto body shop.

Mutual Life Insurance Co. v. Hillmon (SCOTUS, 1872)

although case occurred prior to the adoption of the Federal Rules, similar to FRE Rule 803(3) ["Statements of Then-Existing Condition"]. Case concerned the admittance of letters written by Walters to his sister and fiancée, which described his location, interactions w/ John Hillmon, and travel plans (e.g. his intentions). Opinion of the Court: the letters demonstrated Walters' "particular intention", and could capture a clearer/more trustworthy representation of Walters' recollections than if he was still alive. The letters made it more probable that Walters did travel w/ Hillmon. Thus, these letters could have properly influenced the jury in determining the question at issue w/in this case: whose body was it?

Commonwealth v. Weichell (MA, 1984)

at issue is a composite sketch created based upon a witness' (Foley) input following a shooting. Foley helped the detective in correct certain features of the assailant, including his nose and other features. At the conclusion of the composite's creation, Foley said "it looks like him." ∆ argues that the composite is inadmissible hearsay. Opinion of the Court: here, the court does not quite say whether the composite amounts to hearsay or not, but chooses to admit the sketch anyways. Foley's statements formed the basis for the composite, and the composite retains the character of those statements. Compare to "Making A Murderer": recall the clip in class where the deputy displayed his sketch of Steven Avery, which he based off of his mugshot (rather than the rape victim's description of her attacker). Note also how the court can still refuse to admit composite sketches under FRE Rule 403.

Ohio v. Clark (SCOTUS, 2015)

child went to preschool w/ bruises on him; when questioned by his teachers as to who abused him, the child said ∆'s nickname ("DeeDee"). Child did not testify at trial, as he was 3 y/o (OH competency issue re: parties under 10 testifying); but, the prosecution sought to introduce the stmts he made to his teachers. Ultimately, the court admitted the stmts under 807. ∆ challenged the admittance of the stmts, and claimed that they violated his 6A CC rights. Opinion of the Court: applies the primary purpose test, and determines that the teacher (although a mandatory reporter) was focused on ending the ongoing emergency of child abuse the 3 y/o was experiencing. The child's conversation w/ his teachers was similar to the 911 call in Davis. Ultimately, the child's stmts were not made w/ the primary purpose of creating evidence for the ∆'s prosecution, and were not testimonial; therefore, their introduction @ trial did not violate the 6A's CC. *NOTE*: SCOTUS does not adopt a categorical rule here (e.g. the court does not say "stmts made to non-LEOs are always non-testimonial")

Bennett Capers, Evidence Without Rules

discusses how a ∆'s mode of dress, demeanor, and racial identity can influence the jury. For example, Capers includes the Bernie Goetz case (white man who shot four Black teens, whom he accused of trying to rob him with a screwdriver on a subway), which exploited white jurors' fears of Black people as justification for Goetz's defense. Capers also touches on implicit biases, especially those of white people, who are more likely to associate criminality and guilt with Black people. Also, the race of the victim matters (includes information on the Baldus study from McCleskey v. Kemp, which demonstrated that jurors were more likely to recommend death sentences for Black ∆s, especially if the victim was white). Proposed Action: believes jury instructions should explicitly state that they may not consider unscreened evidence at all (e.g. racial character evidence). Particularly, the court could provide the jurors with an "evidence checklist" of all the formally admitted evidence they saw/heard during trial.

Jasmin B. Gonzalez, Toward a Critical Race Theory of Evidence

discusses racial character evidence, which juries often rely upon when reaching a verdict. Although not formally introduced, this form of "evidence" is seen in the factfinders' perception of the ∆'s/victim's race, and conclusions they draw from the ∆'s/victim's race. For example, white witnesses are generally perceived to be more credible than witnesses of color. Therefore, Gonzalez argues for a critical race theory approach to evidence law. Stand Your Ground Examples: in the Michael Dunn trial, a white man was accused of murdering an unarmed Black teenager for playing music too loudly at a gas station. The first trial ended in a hung jury re: the murder charge, despite the testimony of the three surviving Black teenagers who were present at the shooting. Highlights how armed white-on-unarmed Black killings are perceived in American society (e.g. the highest probability of being deemed a "justified" homicide occurs when a white shooter kills a Black victim, claiming self-defense). Often times, prosecutors need to prove the victim of color's peacefulness, and that they did not deserve to die. Evidence of Flight: a person's racial identity could prompt them to flee police due to harassment/racial profiling in their communities (similar to the Bennett case from MA), and does not necessarily mean that an individual is "guilty." Cross-Racial Identifications: note how cross-racial identifications are more inaccurate (e.g. a white person will be more likely to incorrectly pick a Black person out of a line-up than if they were another white person).

Frye v. United States (D.C. Cir., 1923)

established the "generally acceptable" standard for evaluating and admitting scientific expert testimony.

Davis v. Washington (SCOTUS, 2006)

established the primary purpose test and defined "testimonial," at least in the context of police interrogations, by looking at the stmt's "primary purpose": (1) hearsay statements are "nontestimonial" under circumstances objectively indicating that the primary purpose of the interrogation was to enable police assistance in an ongoing emergency and (2) hearsay statements are "testimonial" under circumstances objectively indicating that the primary purpose of the interrogation was to establish or prove past events potentially relevant in later prosecution. In this case, a DV victim made a 911 call to report abuse. The call was deemed nontestimonial because the victim's primary purpose was to report and stop the abuse as it was an ongoing emergency; e.g. she was not trying to provide facts that would be used in a future prosecution. However, 911 calls are not categorically viewed as nontestimonial stmts (recall the mistaken opinion of Judge Greenberg) — rather, a contextual analysis of the call is still required to determine the caller's purpose.

Daubert v. Merrell Dow Pharmaceuticals, Inc. (SCOTUS, 1993)

families of newborns with birth defects sued ∆, a pharmaceutical company. Π sought to put on 8 experts to testify to medications' effects. Trial court denied the π's experts, as some of them relied on unpublished or non-peer reviewed studies. Here, SCOTUS recognizes that nothing in FRE Rule 702 speaks to Frye's "general acceptance" theory. Rather, Rule 702 assigns the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant. THE FOUR DAUBERT FACTORS FOR DETERMINING SCIENTIFIC RELIABILITY AND VALIDITY Whether theory or technique can be and has been tested Whether it has been subjected to peer review and publication Known or potential error rates; existence of standards and controls General acceptance (Frye) "The inquiry envisions by Rule 702 is, we emphasize, a flexible one."

OJ Simpson Trial

in his opening statements, the prosecutor spoke of two particular incidents involving DV in Simpson's marriage: (1) when he attacked Nicole's windshield with a baseball bat and (2) when Nicole called 911 and the operator could hear OJ attacking her. The judge permitted both incidents to be discussed as it "went to OJ's motive" — he was controlling and violent when Nicole broke off their relationship, and he was irate because of it. Additionally, could go to "completing the narrative." Note also: CA passed a 404 DV exception in 2006 to permit PBAs involving DV (Why? The OJ trial demonstrated how judges have to "bend the rules" to make things fit/admit evidence that may otherwise not fit within existing exceptions. Creating specific exceptions for DV prompts legislatures/courts to acknowledge the severity of DV, while also acknowledging that incidents tend to go unreported to law enforcement).

Background on Competency Rules

in the 1800s, there used to bar more competency rules. For example, no parties in a matter could testify; no people with a financial interest in the case could testify; people with felony convictions, atheists, women, and people of color also could not testify. Historically, the Confederate states did not want Black people to be permitted to testify against whites. Overtime, most of these competency rules were abandoned. Today, competency is most often discussed in the context of children who are testifying (e.g. if they know the difference between a truth and a lie). However, note how the ban on testimony from witnesses with felony convictions still persists today, as witnesses with felony convictions can feel banned from testifying "by proxy" out of fear of being impeached by the OP/losing credibility with the jury.

Prof. Anna Roberts' Talk

note the roots of FRE Rule 609 (if you have a felony conviction, society believes you willfully broke the social contract, and therefore, are more likely to lie on the stand). Oregon's equivalent of 609 automatically admits ∆'s prior felony conviction should the prosecution request it (and is particularly problematic, as there is no judicial weighing of probative value vs. prejudice). Recall the Oregon AG's argument before the OR Supreme Court ("we've always done it this way..."). Is that a reasonable argument? Should such a problematic rule be continued in the future?

People v. Hall (CA Supreme Court, 1854)

pre-dates FREs, but really, a competency rules case ∆, a white man, was accused of murdering a Chinese person; the only two witnesses were also Chinese. ∆ appealed his conviction on the grounds that Chinese people should've been prohibited from testifying. Here, the CA Supreme Court engages in statutory interpretation to determine whether or not the legislature intended to include Chinese people within the language stating "No Black or Indian person shall be allowed to give evidence in favor of/against a white man." Opinion of the Court: a starkly racist opinion from the court, which discusses the "slippery slope" should they permit Chinese people/POC to testify (then they would have to be extended the "full rights of the citizenry", e.g. the right to vote, the right to serve on juries, etc.) Essentially, the court thinks "if we allow POC to testify, then they will have to be seen as people." Therefore, the court holds that the statute's bar on witness testimony also applies to Chinese people. An example of a court feeling free and able to espouse white supremacist ideology.

Derek Chauvin Trial

recall that the prosecution tried to introduce eight prior bad acts of Chauvin's related to his history of excessive use of force against civilians while a police officer. The judge ultimately only let two incidents be admitted: (1) when he received a commendation for providing proper medical care after a suspect was tased and (2) when he kneeled on a woman's neck for several minutes while arresting her. Regarding the first incident, it shows absence of mistake (e.g. Chauvin knew how to render proper medical care to an individual in distress, which he did not do in the case of George Floyd). Regarding the second incident, it does not demonstrate M.O. (since his identity is not at issue). However, recall that the judge did not specify as to why they admitted these two particular acts in. Additionally, the defense attempted to admit three prior "bad acts" of George Floyd's — particularly, that he had been arrested for narcotics possession one year prior, and had to receive medical care due to ingesting Oxycontin, and another conviction thirteen years prior for aggravated robbery. The judge did not admit any of these three instances. (Why? Likely conducted a Rule 403 analysis, and found that these PBAs could confuse the issues/waste time — George Floyd was not on trial here; Derek Chauvin was).

Michigan v. Bryant (SCOTUS, 2011)

reiterates that statements to police are testimonial when "primary purpose" is to establish or prove past events potentially relevant in later prosecution. This is often true when: (1) stmts describes past events rather than events as actually happening; (2) there is no ongoing emergency or the statement is not needed to resolve an ongoing emergency (but this is not the only factor); (3) the statement was procured with the purpose of creating a substitute for testimony; (4) the statement bore indicia of "formality" or "solemnity"; (5) e.g., calm, structured, or at the stationhouse; (6) in contrast, informality of the situation makes it less likely to be testimonial

Background on FRE 609:

the prejudice against ∆s w/ criminal records dates back to common law England, when people w/ criminal convictions were barred from testifying. This inherent prejudice still remains today, as many ∆s w/ criminal records choose not to testify out of the fear of being impeached w/ their prior conviction (e.g. they think the jury will assume they are lying just because they have a prior conviction). Jury knowledge of prior criminal convictions is significantly associated w/ conviction in weak cases (e.g. the jury is "filling in the gaps" with this knowledge); but, it is less associated with convictions in strong cases.

Bullcoming v. New Mexico (SCOTUS, 2012)

π was accused of DWI; at issue is his BAC test. At trial, the analyst who conducted the test was unavailable, and did not testify as a result. Therefore, the prosecution presented a coworker in the same lab who was familiar w/ testing procedures. Π challenged the analyst's testimony as violating the 6A's CC. Opinion of the Court: the analyst's certification was much more than signing off on a computer-generated report. The other facts in his report are ripe for cross-examination (e.g. notated that he signed off on the vial, that it was sealed, etc.) Most importantly, the BAC report was a document created solely for an "evidentiary purpose", which was used to aid a police investigation, and was therefore testimonial. Due to the report qualifying as testimonial, ∆ should have been provided the chance to cross-examine the analyst who performed the specific test on his blood. In other words... "to rank as testimonial, a stmt must have a primary purpose of establishing/proving past events potentially related to a later prosecution" Note: there has been a wave of "crime lab scandals" across the country (prime example occurred in MA, where a state lab tech falsified thousands of results in drug cases). These scandals can commit particular harm amongst ∆s who are POC (recall the PPT slide re: disparities in rates of drug usage vs. rates of drug arrests b/w races). Note how lab techs may feel pressure to find certain evidence (e.g. 'Making a Murderer' example from class, where the tech was told by police to match the sample to "our guy").

Chambers v. Mississippi (SCOTUS, 1973)

π was accused of shooting and killing a police officer. At trial, π wanted to introduce evidence that another man, McDonald, had confessed to the shooting via his sworn affidavit and via the testimony of other witnesses. However, the trial court did not permit π to put on this portion of his defense based upon a Mississippi "voucher" evidentiary rule (e.g. limits a party's ability to impeach their own witnesses, since π wanted to call McDonald as a witness, as the state obviously would not want to call McDonald). Π challenged his conviction on constitutional grounds. The Chambers Doctrine: the Constitution guarantees criminal ∆ a "meaningful opportunity to present a defense", which comes from the 14A DPC, but also can be found from the 6A's Compulsory Clause. Thus, evidence should be admitted for the ∆ if it is both (1) critical to the ∆'s case and (2) has "persuasive assurances of trustworthiness. Here, had π been permitted to put on his complete, intended defense, he could have persuaded the jury of his innocence. Therefore, π should receive a new trial, not b/c of Mississippi's hearsay rule, but on the basis of due process. Note: at the time, the federal rules did not acknowledge a statement against propriety interest (just acknowledge a statement against pecuniary interest). Therefore, there was not a recognized exception to admit McDonald's hearsay confession to killing Liberty. Note also: similar to Crawford, with a tendency to "protect" ∆s.

Crawford v. Washington (SCOTUS, 2004)

∆ was accused in a stabbing. ∆ alleged that he acted in self-defense (said that victim was pulling a weapon). ∆'s wife, Sylvie, was also present for the interaction, but she was unable to testify due to spousal privilege. However, the prosecution sought to introduce Sylvie's recorded police interrogation, where she made statements against her penal interest (e.g. she acknowledged that she led ∆ to the victim, as the victim had tried to rape Sylvie). ∆ objected to the admission of Sylvie's prior statements as a violation of the 6A's CC. Opinion of the Court: Justice Scalia traces back to the country's "history and tradition" of protecting the 6A's right to confront witnesses (also mentions Sir Walter Raleigh trial). Notes that the "principal evil" at which the CC was directed was the use of ex parte examinations of evidence against the accused. The 6A's text reflects an "especially acute concern" w/ a specific type of OOC statement — that is, a testimonial stmt. Scalia notes that "an accuser who makes a formal stmt to a gov't officer bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Scalia further notes that the Framers would not have allowed the admission of a witness' testimonial stmts if they did not appear at trial, unless they were unavailable and ∆ had a prior opportunity to cross-examine them. However, the majority does not provide a comprehensive definition as to what a "testimonial stmt" is. Criticizing the Roberts Test: Scalia notes how the Roberts test is very tricky to apply (it echoes FRE Rule 807, with the "greater indicia of reliability." Particularly, the Roberts test can admit evidence that is not tested by the adversarial process — meaning, the judge determines if it's sufficiently reliable, and prevents the ∆ from confronting the witness if they are currently unavailable / did not have a prior opportunity to cross them. HOLDING: There is an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine.

State v. Guilbert (CT, 2012)

∆ was accused of murder and assault. Multiple witnesses identified ∆ as the perpetrator — including four people who knew ∆/were familiar with him, and one individual who was not (but, saw ∆'s photo in the paper following the incident, and thereafter ID'd him). At trial, ∆ tried to admit expert testimony re: issues w/ eyewitness ID's, but was denied. Here, CT Supreme Court revisits precedent that held expert testimony re: eyewitness ID's, was not required to be admitted b/c "the average juror" is already aware of factors that affect the reliability of eyewitness identification Opinion of the Court: recognizes that the average juror is not aware of the issues concerning witness testimony; rather, acknowledges that many jurors hold mistaken beliefs re: confidence assc'd w/ ID, etc. Thus, expert testimony on the fallibility of eyewitness identification is admissible when that testimony would assist the jury in evaluating the identification. Note: the court holds that the exclusion of eyewitness ID in this case was harmless error to the four witnesses who knew/were familiar w/ ∆. Per Guilbert, problems w/IDs: Weak correlation between confidence and accuracy Reliability can be diminished when focus on weapon High stress leads to inaccurate perception and memory Cross-racial identifications are less accurate Memory diminishes rapidly over a period of hours IDs less reliable without double-blind, sequential procedure Witnesses can develop unwarranted confidence in IDs if given other info Accuracy can be undermined by unconscious transference

United States v. Duenas (9th Cir. 2012)

∆ was arrested following a raid on his home. However, some discrepancy arose re: ∆'s post-arrest statements. ∆ claimed during a suppression hearing that Officer Smith had obtained his inculpatory statements in violation of Miranda. The trial court admitted ∆'s post-arrest statements at the suppression hearing. However, Officer Smith died before the case actually went to trial, and was therefore "unavailable" — thus, the gov't sought to introduce the officer's testimony re: ∆'s inculpatory statements at trial. ∆ contested the admission under FRE 804(b)(1). Opinion of the Court: the district court was wrong to admit Officer Smith's testimony under FRE 804(b)(1). Particularly, the court failed to compare the different objectives of defense counsel at the suppression hearing vs. at the trial — at the suppression hearing, the defense's motive in questioning Officer Smith was to get ∆'s inculpatory statements excluded in violation of Miranda, whereas at trial, their motive would've been to challenge the substance of ∆'s statements. Here, the court wants to look at details in the record (e.g. scope of the cross, what defense counsel "seemed to be getting at") — thus, the 9th Cir. is not saying that motives of suppression hearings and trials are always different a.k.a. this is not a bright-line rule. Note also that "similar motive" does not matter re: "intensity of the motive."

Fletcher v. Weir (SCOTUS, 1982)

∆ was charged in a stabbing murder; at trial, ∆ took the stand and mentioned his self-defense explanation for the first time. The prosecution crossed ∆, and asked why he had not mentioned self-defense until then. Opinion of the Court: if the ∆ has not been provided Miranda warnings, we do not believe that due process if violated if a court permits cross-examination re: ∆'s post-arrest silence when they choose to take the stand (e.g. if there have been no MWs, a person would more naturally respond/speak up). Note: this is an example of constitutional rules interacting w/ the Federal Rules of Evidence.

United States v. Ince (4th Cir. 1994):

∆ was charged w/ AWDW following a shooting in VA. Following the incident, one of the passengers in ∆'s van, Neumann, gave a statement to police re: the incident and ∆'s statements. Neumann told police that ∆ admitted to being the one who fired the shot, and signed a written statement. However, Neumann refused to testify at trial — so, the gov't sought to introduce the officer's testimony as to what Neumann said. The jury deadlocked after the first trial, but eventually convicted ∆ after the second trial. ∆ argues that the officer's testimony amounted to inadmissible hearsay, whereas the gov't argues that the testimony was necessary to impeach Neumann. Opinion of the Court: there are limits for a party seeking to impeach their own witness. For example, in Morlang, the court reversed a conviction b/c the gov't employed impeachment via PIS as "mere subterfuge to introduce evidence before the jury that would otherwise be inadmissible." Here, the court must apply a FRE 403 analysis and weigh the testimony's impeachment value vs. its tendency to prejudice the ∆/confuse the jury. When the prosecution attempts to introduce PIS to impeach its own witness, the statement's likely prejudicial impact often substantially outweighs its probative value — because, the jury may ignore the judge's limiting instructions (e.g. "focus on this testimony for impeachment purposes, not evidentiary purposes). Here, this risk is particularly amplified because Neumann's statement contained ∆'s alleged admission of guilt. Note: this is one of the few examples where a reviewing court overturns a lower court's ruling on 403 grounds, despite it being a permissive rule for allowing evidence in.