Evidence

Competency of Witnesses

"[E]very person is competent to be a witness except as otherwise provided."

FRE 412 - The Rape Shield Law

(a) Evidence generally inadmissible. (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove only alleged victim's sexual predisposition.

FRE 406 - Habit; Routine Practice Rules

(a) Evidence of -a person's habit OR -the routine practice of an organization (b) Regardless of -whether the evidence has been corroborated OR -the presence of eyewitness is RELEVANT to prove that certain conduct was in conformity with that habit or routine practice.

FRE 613 - Hearsay Exceptions - Past Statements of Witnesses - Inconsistent Statements Offered to Impeach

(a) Exam - When questioning witness about a prior statement, only have to show contents to opposing counsel. (b) Extrinsic Evidence - NOT ADMISSIBLE UNLESS 1. The witness given a chance to explain/deny AND 2. Opposite party given a chance to interrogate witness on the evidence

You're a Defense Lawyer; Client Has Committed a Crime

(a) bring motion "in limine" to prevent admission of evidence regarding D's criminal past. (b) think twice about putting D on stand.

FRE 407 - Subsequent Remedial Measures Defined

(i) a measure that is taken after injury or harm caused by an event (ii) and that measure would have made the injury or harm less likely

FRE 412 - The Rape Shield Law - Stephens v. Miller

-A defendant's implicit right to testify in his own defense must yield to certain procedural and evidentiary rules. -Res gestae excuse only served to humiliate the victim.

FRE 412 - The Rape Shield Law - United States v. Knox

-A rape victim's past sexual acts do not tend to prove or disprove the existence or present consent. -Past individual sex acts do not tend to prove or disprove her willingness that night.

FRE 403 - Exclusion/Prejudice/Confusion/Waste of Time

-Although relevant, excludable if probative value (PV) substantially outweighed by danger of unfair prejudicial effect. -Bias towards admissibility.

FRE 608 - Character for Truthfulness - Evidence of Character & Conduct of Witness - Opinion and Reputation Evidence

-Credibility may be attacked or supported in the form of opinion or reputation BUT: 1. Evidence must refer only to character for truthfulness or untruthfulness. 2. Evidence only admissible after attack. -Specific instances of conduct to attack/support credibility may not be proved by extrinsic evidence. -403 balancing test. (cross exam MAYBE)

FRE 609(c) - Pardon, Annul, Rehab

-Evidence of conviction is inadmissible, if (i) conviction was subject of pardon, annul, rehab AND (ii) convict was not convicted of a later crime that was punishable by death or imprisonment in excess of 1 year. -Effect of Finding of Innocence: conviction was the subject of any other procedure based on a finding of innocence.

FRE 408 - Bankcard America v. Universal

-Evidence of settlement negotiations is admissible if offered for a purpose other than to establish liability (explain to jury why it converted merchant accounts). -Can't benefit from encouraging company to breach and then preventing explanation of the breach due to settlement discussions.

FRE 609(a)(1) - Use of Past Convictions

-For attacking the character for truthfulness of the witness, evidence that a witness OTHER THAN THE ACCUSED has been convicted of a crime shall be admitted, if punishable by death or imprisonment (excess of 1 yr.) -If court determines high probative value 5 FACTORS 1. nature of crime (violent crimes generally have no bearing on honesty or veracity) 2. timing, 3. similarity b/w crimes, 4. importance of D's testimony, 5. centrality of credibility issue

FRE 406 - Habit; Routine Practice Definition

-Habit requires invariable regularity, not volitional. -Regular response to a repeated specific situation. Ex. "What Doesn't Count?" -drugs/alcoholism -going to church -assaulting people/violent character

FRE 414 - Permissible Routes Through Propensity Box - Child Molestation Rules

-In a criminal case in which D is accused of child molestation, evidence of D's commission of other offense(s) of child molestation is ADMISSIBLE. -Child (under 14)

FRE 413 - Permissible Routes Through Propensity Box - Sexual Assault Rules

-In a criminal case in which D is accused of sexual assault, evidence of D's commission of other offense(s) of sexual assault is ADMISSIBLE. -Contact between private parts, etc.

FRE 414 - Permissible Routes Through Propensity Box - Child Molestation Defined

-Inducing, enticing, or coercing minor (under 18) to engage in any explicit conduct for the purpose of producing any visual depiction of conduct. -Knowingly shipping, receiving, possessing material containing visual depictions of child porn -Contact between private parts.

FRE 801 - Hearsay Analysis - Assertions

-Instinctive reactions are not hearsay -Words offered to prove something other than what they assert are not hearsay -Implied assertions are hearsay if offered to prove the truth of the implied assertion ("Lock him up, throw away the key") -Indirect assertions are hearsay if just one small link in a chain of inferences leading to the ultimate thing being proved ("Robber driving a red explorer," - "Higgins drives a red explorer.) -Non-verbal conduct is hearsay if intended to communicate something to someone else b/c of risk of insincerity. (Pointing @ prison sign "we're being taped")

FRE 404 - Routes AROUND The Propensity Box - Absence of Accident

-Involves a learning curve from a first accidental experience. Ex. charged with killing wives while cleaning guns, should have been super careful.

FRE 104(b) - Huddleston Standard for Admitting Other Crimes Evidence

-Preponderance of the evidence standard. -Evidence of similar "other acts" may be admitted if there is sufficient evidence to support a finding by jury that D committed the similar act. -No bar from introducing evidence linking D to another crime if D acquitted b/c not a "beyond a reasonable doubt" standard, but a "more likely than not" standard" that D committed previous crime. -Still must do a 403 balance.

FRE 415 - Permissible Routes Through Propensity Box - Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation

-Similar crimes are admissible -Must give notice at least 15 days before trial/disclose evidence to other side

FRE 608 - Character for Truthfulness - Evidence of Character & Conduct of Witness - Specific Instances of Conduct

-Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime may not be proved by extrinsic evidence. (cross exam MAYBE) 1. concerning witness' character for truthfulness 2. concerning character of another witness on which witness being cross-examined has testified

FRE 412 - Exceptions to the Rape Shield Law

1) Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence. 2) Specific instances offered to prove consent. KNOX - properly excluded evidence of promiscuity. 3) Evidence exclusion would violate constitutional rights.

FRE 407 - Rationale/Policy Reasons

1. -Evidence of remedy is often weak evidence of negligence because we cannot say that "because the world gets wiser as it gets older, therefore it was foolish before." BUT -"the inference [of negligence] is...a possible one" because repair "tend[s] to show consciousness that the situation called for additional safety-precautions." 2. However, policy wise, we want people to take measures to prevent further injury without fear that these measures will be used against them.

Differences Between 608/609/404(a)(3) and 404 (a)(1) and (2)

1. 608 and 609 apply to all cases; 404(a)(1) and (2) apply only in criminal cases. 2. 608 and 609 permit either party to initiate an attack on a witness's character for truthfulness. 404(a)(1) and (2) permit the criminal D to initiate the use of character evidence, whereas the gov. may not offer character evidence until after the accused has put his own or the victim's character in issue.

FRE 410 - Rationale/Policy Reasons

1. A defendant, although not guilty, might offer a plea to avoid the risk of loss after trial and an even greater penalty. 2. Exclusion will promote plea bargaining.

FRE 802 - Hearsay Rule - Reliability

1. Bad perception 2. Poor memory 3. Bad narration (misspeak) 4. Sincerity (truthfulness, most important) TESTING TOOLS IN COURT 1. Under oath 2. Social pressure not to lie 3. Demeanor evidence - scrutinize faces and mannerisms, watch for signs of stress 4. Cross examination

FRE 408 - Rationale/Policy Reasons

1. Compromise "may be motivated by a desire for peach rather than from any concession of weakness of position." 2. We want to encourage compromise without retribution.

FRE 801 - Hearsay Analysis

1. Is it an assertion? [FRE 801(a)] 2. Offering the statement to prove (the truth of) matter asserted? [FRE 801(c)]

FRE 411 - Rationale/Policy Reasons

1. It is unlikely that the insured are more careless or that the uninsured are more careful. 2. The jury might otherwise seek deep (insured) pockets or reduce recoveries to insured plaintiffs. 3. Exclusion encourages insuring and avoids a windfall for the opponent of an insured party.

FRE 608(a)(2) - Rehabilitation

1. May only rehab it's own witness' character for truthfulness after other party's attack. 2. Attack on the witness' character for truthfulness occurs when: (a) opinion or reputation for bad truthfulness offered (b) cross exam (c) past conviction - 609 (d) contradictory evidence

FRE 409 - Rationale/Policy Reasons

1. Offer is "usually made from humane impulses." 2. Admitting evidence "would tend to discourage assistance."

Types of Relevant Evidence

1. Supports proposition about whether or not D did it. 2. Supports D against opposing party's proposition. 3. Bolsters/Undermines credibility of witness. 4. Evidence reducing size of potential wrongdoers but leaves D makes it slightly likelier that D=culprit

FRE 104(b) - Huddleston v. United States

A court need not make, prior to admitting past acts introduced to show motive or knowledge, a preliminary finding that acts occurred. (stolen goods)

FRE 410 - United States v. Biaggi

A rejected immunity offer is significantly more probative than prejudicial and should be admissible as evidence of innocence.

FRE 412 - The Rape Shield Law - People v. Abbot

A woman's past sexual history is relevant to her credibility as an alleged victim of sexual assault because of the question of assent.

FRE 609(e) - Pendency of an Appeal

ADMISSIBLE generally.

Character for Truthfulness - Non Character Modes of Impeachment

Any type of evidence may be admitted to show that the witness not telling the truth because of: 1. Bias, motive, intent 2. Defects in perception and memory 3. Contradiction by past inconsistent statements 4. Contradiction by conflicting evidence or circumstances

FRE 403 - Probability Evidence - People v. Collins

Applications of mathematical techniques in the proof of facts in a criminal case must be critically examined in view of the substantial unfairness to the defendant which may result.

Stipulations

Availability of a stipulation reduces relative probative value, but mere fact of concession doesn't mean evidence of it is not relevant

FRE 411 - Liability Insurance

BARS liability insurance or lack of it TO PROVE negligence/wrongful action BUT NOT TO PROVE other things SUCH AS agency, ownership, control, or witness bias

FRE 409 - Medical Expenses

BARS offer or payment of medical costs TO PROVE liability APOLOGIES: unguarded impulse to apologize will come in against him.

FRE 410 - Pleas

BARS (against the defendant) (1) guilty plea later withdrawn (2) nolo contedere plea (3) statements in plea proceedings (4) statements in plea talks with prosecutor BUT "ADMISSIBLE" (i) to complete partial account of plea discussions (ii) in perjury prosecution if statement under oath, on record, and in counsel's presence

FRE 408 - Compromise of Civil Actions

BARS BUT NOT TO PROVE compromise/attempt to comp. other things a disputed claim SUCH AS and statements/conduct in witness bias, lack negotiations of undue delay, or TO PROVE obstruction of crim. liability for or invalidity of a investigation claim

FRE 407 - Subsequent Remedies

BARS BUT NOT TO PROVE subsequent remedial measures other things TO PROVE "SUCH AS" negligence, culpable conduct, ownership, control, product defect, or need for or feasibility, if warning controverted, or to impeach

FRE 404 - People v. Zackowitz

Character is never an issue in a criminal prosecution unless the defendant chooses to make it one. (owned other pistols) Evidence of Zackowitz's Weapons-->To prove his vicious & dangerous character-->"TO PROVE ACTION IN CONFORMITY THEREWITH"-->To prove he killed with premeditation.

FRE 403 - Commonwealth v. Serge

Computer generated animation not confusion, valid.

Stipulations - U.S. v. Jackson

Conditional exclusion of evidence upon entry of a stipulation is an appropriate solution to a complex Rule 403 analysis where both highly prejudicial and yet probative evidence exists.

FRE 607 - Character for Truthfulness - Who May Impeach

Credibility of a witness may be attacked by any party, including the one calling the witness.

FRE 413 - Permissible Routes Through Propensity Box - Sexual Assault Rules - United States v. Mound

DISSENT: -Seeks to reevaluate the decision made by Congress when it passed FRE 413 and allowed propensity evidence in sexual assault cases. -Reconsiders concern that jury will simply find the defendant guilty based on prior bad acts.

Stipulations - Old Chief v. U.S.

During a prosecution for violation of 18 U.S.C. §922(g)(1), which prohibits possession of a firearm by anyone with a felony conviction, a court may permit D to concede the fact of a prior conviction before the state has the opportunity to offer evidence identifying the previous offense.

FRE 404 - Routes AROUND The Propensity Box - Proof of Knowledge

Evidence not barred if the typical person doesn't know how to commit the crime. Ex. Prosecutor probably must show knowledge to convict 17 year old computer hacker. Ex. Knowledge of employee's drunken reputation to prove negligence in keeping him on the job.

FRE 403 - U.S. v. Myers

Evidence of flight may be probative of circumstantial evidence of guilt ONLY if four enumerated inferences may be drawn: 1. From D's behavior to flight. 2. From flight to consciousness of guilt. 3. From consciousness of guilt to consciousness of guilt concerning the crime charged. 4. From consciousness of guilt concerning the crime charged to actual guilt of the crime charged.

FRE 404 - Routes AROUND The Propensity Box - Proof of Identity - U.S. v. Trenkler

Evidence of other crimes is admissible if there is a "special relevance" beyond demonstrating criminal propensity and the evidence is more probative than prejudicial. (similarity of bomb)

FRE 404 - Routes AROUND The Propensity Box - Narrative Integrity (Res Gestae) - United States v. DeGeorge

Evidence of prior acts may be admitted if necessary to offer a coherent and comprehensible story about the commission of the crime. (sham transaction scheme)

FRE 404(a)(3) - Character for Truthfulness - Propensity as a Liar

Evidence of the character of a witness is ADMISSIBLE as provided in Rules 607, 608 and 609.

FRE 412 - The Rape Shield Law - Past Allegedly False Accusations

Evidence offered to prove allegedly false prior claims by the victim is not barred by R. 412

FRE 411 - Williams v. McCoy

Evidence related to insurance is admissible so long as it is offered other than to show the mere existence or non-existence of insurance as evidence of negligence or wrongdoing. (evidence explaining why she retained a lawyer).

FRE 609(a)(2) - Crimes of Dishonesty or False Statement

Evidence that a witness has been convicted of a crime shall be admitted, regardless of punishment, shall be admitted if falsity was required as an element of the crime.

FRE 404 - Permissible Routes Through Propensity Box

FRE 404(a)(1): Def. puts in evidence of good character (opens box for prosecutor to challenge) FRE 404(a)(2): Allows def. to introduce character evidence about victim of the crime. --> RAPE SHIELD LAW TRUMPS THIS RULE.

FRE 405 - Limiting Defendant Character Proof

FRE 405(a): Can introduce reputation or opinion evidence but not specific instances of conduct. FRE 405(b): Specific instances of conduct may be used as proof where a person's character is an "essential element" of a charge, claim, or defense. -Resolving a parental custody dispute. -Proving not guilty by reason of insanity.

FRE 801 - Hearsay Exceptions - Statements of Party Opponents

FRE 801(d)(2) -Not hearsay if offered AGAINST the party and is: 1. (a) The party's own words. 2. (b) Adoptive admission (Silence) -heard and understood by party against offered -party was at liberty to respond -circumstances naturally call for a response -party failed to respond 3. (c), (d) Statement's of Agents -statement made by a person authorized to make a statement concerning the subject 4. (e) Co-conspirator's statements -statement made by a co-conspirator during and in furtherance of the conspiracy.

Use of Extrinsic Evidence

Generally not able to use

FRE 403 - State v. Bocharski

Gruesome photos utilized primarily to enflame jury.

FRE 401 - "Bare Relevance" Standard

Having any tendency to make determination more or less probable. (Liberal Rule) REQUIREMENTS: 1. Evidence must be material. 2. Evidence must be probative. (relevant) 3. Need not prove anything per se.

FRE 802 - Hearsay Rule

Hearsay not admissible except as provided by exceptions.

FRE 404 - Character Propensity Evidence

INADMISSIBLE w/r to: Character/trait proving stereotype/conformity therewith. ADMISSIBLE w/r to: Identity Knowledge Motive Signature Crime State of Mind (James)

FRE 609(b) - Time Limit

If conviction more than 10 years, generally won't be admitted, 403 balance

FRE 608 - Character for Truthfulness - Evidence of Character & Conduct of Witness - Good Faith Basis

Lawyer may not ethically ask about specific instances of conduct without having a good faith basis for believing that they took place.

FRE 403 - Fuhrman Tapes

Let in testimony about Fuhrman tapes and a few excerpts instead of playing them all.

FRE 403 - Cali. Dog Attack Trial

Letter about sex w/dogs unfairly prejudicial.

FRE 404 - Routes AROUND The Propensity Box - Proof of Plan

May introduce evidence of plan to commit the crime. (bought guns, masks, etc. for a bank robbery)

FRE 404 - Routes AROUND The Propensity Box - Proof of Preparation

May introduce evidence of preparation to commit the crime. (bought guns, masks, etc. for a bank robbery)

FRE 404 - Routes AROUND The Propensity Box - Proof of Intent

May introduce evidence relating to the defendant's intent to commit the crime.

FRE 404 - Routes AROUND The Propensity Box - Proof of Opportunity

May introduce evidence relating to the defendant's opportunity to commit the crime. (everyone else was out of the house, defendant wasn't working, so had opportunity to commit rape)

FRE 404 - Routes AROUND The Propensity Box - Proof of Motive

May introduce prior acts if part of same transaction or occurrence. Ex. Outstanding warrant (motive to resist arrest)

FRE 404 - Routes AROUND The Propensity Box - Proof of Identity

Modus Operandi - Crime is so unique, D is pretty much the only one who could do it (signature type crime)

FRE 609(d) - Juvenile Adjudication

ONLY ADMISSIBLE IF: Criminal case, other than the accused, necessary to determine guilt or innocence, would be admissible against the credibility of an adult

FRE 401 - U.S. v. James

Ogden's Violent Criminal Past - Records admissible to corroborate testimony even when witness did not know contents of the records.

FRE 412 - The Rape Shield Law - State v. Sibley

Only female witnesses may be impeached by proof of general reputation for unchastity.

FRE 801 - Hearsay - Defined

Out-of-court statement - (1) an oral or written assertion or (2) nonverbal conduct of a person, (if it is intended by the person as an assertion) offered in evidence to prove truth of matter asserted by declarant.

FRE 412 - The Rape Shield Law - State v. Smith

Prior false allegations of past sexual assault do not constitute past sexual behavior for purposes of the rape shield statute and are therefore admissible evidence.

FRE 404 - Routes AROUND The Propensity Box - Proof of Identity - U.S. v. Stevens

REVERSE 404(B) A defendant may introduce other crimes' evidence so long as the evidence tends to negate his guilt and is more probative than prejudicial. (similar robbery days before)

FRE 402 - "Relevant Evidence" Standard

Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.

FRE 413- Permissible Routes Through Propensity Box - Sexual Assault Rules - United States v. Guardia

Relevant propensity evidence is admissible under FRE 413 if D is accused of a sexual offense, the offered evidence is of D's commission of another sexual offense, and the evidence is not unfairly prejudicial.

FRE 404 - Routes AROUND The Propensity Box - Doctrine of Chances - Wilson v. State

SIDS case, prosecution erred in offering statistical probability evidence concluding a 1,000,000 chance that petitioner was innocent.

FRE 404 - Routes AROUND The Propensity Box - Doctrine of Chances - Rex v. Smith

So unlikely that previous wives would have also drowned (fainting excuse), evidence was allowed.

FRE 404 - Routes AROUND The Propensity Box - Doctrine of Chances

Some cases are so unusual that there is huge percentage that happened again.

FRE 801 - Hearsay Exceptions - Statements of Party Opponents - Statements of Agents - Mahlandt v. Wild Canid Survival

Statements made by agents within the scope of their employment are admissible and there is no implied requirement that the declarant have personal knowledge of the facts underlying his statement.

FRE 404 - Routes AROUND The Propensity Box - Narrative Integrity (Res Gestae)

Story doesn't make sense without this evidence.

FRE 407 - Tuer v. McDonald

Subsequent remedial measure evidence is not generally admissible for impeachment purposes if it is merely offered to contract a defense witness's testimony.

FRE 104 (b) - Cox v. State

Testimony about Hammer's bond hearing only relevant if D knew about what happened at hearing. If D knew, relevant and extremely probative of State's theory. D spent almost every day at Hammer house w/ Hammer's mom, who was at the hearing; close friends w/ Hammer → evidence sufficient to support inference that D learned of what happened at hearing. ANOTHER EXAMPLE: Husband only had motive to kill wife if he knew of plan to tell "their" son soon that husband not son's father.

FRE 412 - The Rape Shield Law - Olden v. Kentucky

The Confrontation Clause mandates that a defendant be permitted to cross-examine a witness on any relevant matter.

FRE 413 - Permissible Routes Through Propensity Box - Sexual Assault Rules - State v. Kirsch

The burden is on the prosecution to prove the purpose for which it offers other crimes' evidence and that purpose cannot be merely to show predilection for the crime charged.

FRE 414 - Permissible Routes Through Propensity Box - Child Molestation Rules - Lannan v. State

The depraved sexual instinct exception to the general rule against admissibility of prior bad acts should no longer be recognized.

FRE 403 - "Bad Man" Effect

U.S. v. James -All cases have some form of prejudice. -Risk that jury will convict D b/c a bad guy even if innocent. -Ignore reasonable doubt standard, won't regret putting "bad guy" in prison.

FRE 403 - Risk of Unfair Prejudice

Undue tendency to move the tribunal to decide on an improper basis.

FRE 404 - Permissible Routes Through Propensity Box - Defendant's and Victim's Character - Michelson v. United States

When a defendant puts his character at issue by calling witnesses to testify to his good character, the prosecution may as those witnesses if they have heard of specific acts of bad conduct relating to D. (bribing an official)

FRE 104 (b) - Conditional Relevance

When relevancy depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition. REQUIREMENTS 1. Requires sufficient evidence jury could find the conditioned fact. 2. Judge must determine a reasonable jury could make the requisite factual determination based on the evidence. 3. Judge must instruct jury that evidence is relevant only if they conclude that condition of fact exists.

FRE 406 - Habit; Routine Practice Rules - Halloran v. Virginia Chemicals

Where the issue involves proof of a deliberate and repetitive practice, a party should be able to introduce evidence of habit or regular usage to allow the inference of its persistence, and hence negligence, on a particular occasion. (P had on previous occasions ignored immersion coil label warnings)