Evidence

609—Impeachment by Criminal Convictions Two Types: (1) Only ___________ a. When witness is not defendant (civil or criminal) - MUST come in subject to _________ b. When witness is defendant in criminal case—MUST come in if ______________ outweighs ____________ (2) Any _____________ a. Any ____________—regardless or punishment—so misdemeanor or felony—MUST be admitted if the elements of that past crime required proving a _________________. d. Only rule in the rulebook with _____________- it MUST be admitted. e. subject to ____________ limit and juvenile

(1) Felony—anything punishable by death or imprisonment by more than 1 year a. 403 b. probative outweighs unfair prejudice i. Note this is a STRICTER balancing test because even just one bit more prejudice tips the scale rather that it needing to be substantially prejudicial (2) Crime a. crime—dishonest act or false statement b. Examples i. Perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretenses—or any other crime that involves deceit, untruthfulness, or falsification d. no balancing test e. 10 year limit

Ways to make the prejudice outweigh the probativeness: (1) ________________ —essentially you cross that threshold of making your point, but you continue to harp on that one issue when the jury already has well over enough evidence 2. (2) Reduce the probativeness by ____________—taking the sting out of it 3. (3) If there is a ________________ to get the evidence in that is less damaging

(1) _________________—essentially you cross that threshold of making your point, but you continue to harp on that one issue when the jury already has well over enough evidence (2) admission a. If the other side has nasty evidence of you that is damaging, you can admit that fact and then the evidence would be unnecessary and cumulative and adding it would be unfairly prejudicial (3) an alternative way

Subsequent Remedial Measures (FRE 407) The 4 Things Can't Admit Subsequent Measures For: (1) (2) (3) (4) *Every other reason is fair game a. Examples of permissible reasons the court gives: i. (1) ownership or control (ex: if neighbor says he doesn't own the pool- so neighbors video tape alleged pool owner for putting up the fence) ii. (2) control iii. (3) impeachment iv. (4) feasibility of precautionary measures NOTE—to make the argument that you are offering the evidence for x, x has to be in dispute—it can't not be in dispute and you just say oh but it was feasible—doesn't work like that Third Party Repairs: R: Generally admissible - the conduct you are seeking to deter (making things safer and not having to worry that it will be used against you in your trial) doesn't apply to 3rd parties because ...?

(1) negligence (2) culpable conduct (3) product defect (4) need for warning or instruction iii. Policy—we want people to fix these things so that they don't happen again to someone else—and just because they fixed it doesn't mean they were in the wrong in the first place—it may just mean that they are trying to be extra safe now Third Party Repairs: R: who cares if the other person gets sued because of you

R 402: Evidence is admissible if it is relevant unless the Constitution, federal law, other evidence rules, or Supreme Court rules say otherwise—irrelevant evidence is not admissible. R 401: Evidence is relevant if i. (1) ? ii. (2) ?

(1) probative—has the tendency to make a fact more or less probable than it would be without the evidence AND (2) material—the fact is of consequence in determining the action

Prior Convictions R: Factors that matter when including or excluding evidence based on prior convictions: (1) Whether or not the prior conviction was ____________________ as the current charged conviction a. The more similar—the more likely _______ (2) how ___________ the prior conviction was a. Closer in time—__________ prejudicial

(1) related or of the same nature a. prejudicial (2) long ago a. more

609—Impeachment by Criminal Convictions To appeal a wrong admission of a past conviction— (1) defendant must have _____________ (2) the ________________ must have introduced the conviction—not _________________ Caveat: _______________ can allow appeal when the defendant offers their own past conviction

(1) testified at trial (2) prosecutor defense Caveat: state supreme courts

Exception to Relevance R 403— "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: ...? 3 ways to outweigh probativeness if substantial: ??? "substantially outweighed" c. So to be excluded the evidence has to be incredibly unfair to the disadvantaged party and that unfairness has to greatly outweigh ______________.

(1) unfair prejudice, (2) confusing the issues, misleading the jury, (3) undue delay, wasting time, or needlessly presenting cumulative evidence." (1) unfair prejudice (2) confusing the issues or misleading the jury (3) wasting time of presenting cumulative evidence c. the point that the other party is trying to prove.

Hearsay What is Hearsay Rule 801: (a) Statement— "Statement" means ...? (b) Declarant—"Declarant" ...? (c) "Hearsay" means a statement that: (1) the declarant does not make while___________________; and (2) a party offers in evidence to prove the __________________ in the statement. General R: Hearsay is an...?

(a) Statement— means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. (b) Declarant—means the person who made the statement. (the person outside the court room) (1) testifying at the current trial or hearing; and (2)truth of the matter asserted General R: (1) out of court statement made by the declarant offered in court by the witness (2) for the truth of the matter asserted

At around 8:53 a.m. on April 12, 2003, F.T. checked into Abbott Northwestern Hospital for treatment of several injuries, the most serious of which was swelling of her left eye, F.T. was diagnosed with a blowout fracture of her eye orbit. At a grand jury hearing the next day, where only the prosecutor, the jurors, and F.T. were present, F.T. testified under oath that the father of her children and former boyfriend, Andre Robinson, had hit her in the eye with an open hand. F.T. did not seek an order for protection and began living with Robinson again. At Robinson's trial on assault charges, the state called F.T. to testify. She stated that she was sleeping early in the morning on April 12, 2003, when Robinson started knocking loudly on her door. She let him in and they began arguing about a woman Robinson had been with. She eventually went into the bathroom and they began arguing through the closed door. After the argument deescalated, F.T. peeked out the door to see if Robinson was still there and Robinson pushed the door open, causing it to hit her [and inflicting the injuries to her eye]. She described it as an accident.... Assume that the prosecutor then offered a transcript of F.T.'s grand jury testimony and that the trial judge, over Robinson's hearsay objection, admitted the transcript as an exhibit. If the prosecutor rested without offering further evidence of the cause of F.T.'s injury, and if the Δ moved for a directed verdict of acquittal, how should the judge have ruled? In other words, could F.T.'s grand jury testimony serve as substantive evidence of Robinson's guilt? Assume that the Federal Rules of Evidence control.

-Can get in under both kinds of impeachment—can get in substantively because FT was under the pains of perjury at the grand jury hearing -804 is out so does this statement come in as impeachment or 8019(d)(1)(A). If brought in as narrow impeachment it just discredits the witness

Consider one last variant of State v. Robinson, in which F.T. arrived at the hospital on April 12, 2003, with a "blowout fracture to her right orbit." Assume that at a grand jury hearing the next day, where only the prosecutor, the jurors, and F.T. were present, F.T. testified under oath that Robinson hit her in the eye with an open hand. Also assume that at Robinson's assault trial, F.T. took the stand, but altogether refused to testify and persisted in her refusal even when the judge threatened to hold her in contempt. If the prosecutor, over the Δ's hearsay objection, offered a transcript of F.T.'s grand jury testimony, how should the trial court have ruled? Assume that the FRE controls and that F.T.'s grand jury testimony is the only account of F.T.'s injury offered at trial.

-Can't get in because she was not subject to cross exam at the grand jury trial -804 is unavailable and 801 is unavailable because you can't cross examine a witness who refuses to testify.

After F and G were arrested on suspicion of involvement in a drug-running operation, a Customs Service agent overheard G say to F, "Why so much excitement? If they caught us with the goods, they caught us with the goods." F remained silent. At F's trial, may the government offer evidence of G's statement, together with F's silence, (1) as substantive evidence of F's guilt? (2) to impeach F if he testifies and denies all knowledge of the drug operation? Does your answer depend on whether F already had been advised of his right to remain silent?

-only two ways this could come in possibly: Conspiracy and adoption by silence. This was no longer a conspiracy b/c they were arrested for the crime. -If they had been read their Miranda rights, it can't come in at all

Impeachment & Character For Truthfulness 608(b)—specific instances Door opened—just by being cross examined - PRINCIPLE & CHARACTER WITNESS'S The cross examiner can examine into specific instances of past conduct that tend to show truthfulness or untruthfulness Counsel must have reasonable basis for asking about the specific instance—must be in possession of some facts which support a genuine belief that this instance has happened Limits: 1. ? 2. Subject to ________ analysis 3. Counsel cannot ___________ the witness 4. Limited by __________

1. Counsel is stuck with whatever the witness responses with—no extrinsic evidence allowed to prove or disprove the specific instance that is offered 2. 403 3. harass or embarrass 4. 609

Impeachment & Character For Truthfulness 3 Types of Character Based Impeachment (1) 608(a)—either party can open the door by presenting evidence of the witness's character for untruthfulness, and if so, the opponent can rebut with evidence of the witness's character of truthfulness 1. Can only open the door with ____________________ (2) 608(b)—on cross, a party may ask the witness about _____________________ of a witness's conduct if those instances are probative of that witness's character for truthfulness or untruthfulness (3) 609—either party can impeach a witness with __________________ of a sufficiently serious or deceptive crime

1. OPINION or REPUTATION (2) specific instances (3) past convictions

609—Impeachment by Criminal Convictions 1. Allows a litigant to impeach a witness with evidence of _____________________ 2. Typically the ____________ of the crime cannot come out but sometimes a judge may let them in

1. past conviction of a crime 2. details

TRUE Exceptions—CRIMINAL CASES - Defendant & Victim Character 404(2)(A)—a DEFENDANT may offer evidence of ________ pertinent trait - if admitted—the prosecutor can offer evidence to rebut it 1. This rule allows the ______________ to open the door and when he does, the other side can now offer character evidence a. 405—ONLY OPINION OR REPUTATION generally i. Prosecution can rebut with ____________ or with _______________ b. NOTE—405 only allows for specific instances to be asked of the character witness vs. 608(b) that allows for cross of specific of PRINCPLE witness's 2. Pertinent trait—? 4. So note that this allows the prosecution to put on a character witness about this persons reputation and opinion that can be crossed by defense with specific instances of good

404(2)(A)—HIS 1. defendant i. SPECIFIC INSTANCES reputation and opinion 2. Pertinent trait—peacefulness, thievery, etc. -Ex. Honest to rebut that he bribed someone

TRUE Exceptions—CRIMINAL CASES - Defendant & Victim Character 404(2)(B) - the DEFENDANT can offer evidence of the VICTIMS pertinent trait -> if he does, prosecution _____________. 1. Prosecution can— (1) rebut the character about the victim and (2) offer evidence of defendants _____________ trait 3. ______________ opens the door a. 405—ONLY OPINION OR REPUTATION generally can open the door i. Prosecution on cross can rebut this with SPECIFIC INSTANCES - or general opinion and reputation

404(2)(B) - offer evidence to rebut what the defendant says 1. SAME -Ex. Most common in self-defense cases to show the victim is violent and acted in accordance with his violent tendencies 3. Defendant

TRUE Exceptions—CRIMINAL CASES - Defendant & Victim Character 405(b)—when the character trait is a ___________ to the offense changed, specific instances that prove that trait can be admitted 1. This only applies to prove that the trait ___________, not the person acted in accordance with it Examples i. (1) rebutting an entrapment defense—the accused is trying to prove that they were forced to commit a crime that they wouldn't otherwise commit but the government is trying to prove that the person is predisposed to do this thing ii. (2) proving or rebutting truth in libel or slander—obvious iii. (3) resolving parental custody—you want to know if the parent has good or bad qualities, not whether they are acting in accordance with those qualities

405(b)— ELEMENT 1. EXISTS

609—Impeachment by Criminal Convictions (1) Only Felony—anything punishable by death or imprisonment by more than 1 year 5 Factors of this weighing test: (1) __________ of the crime a. R: The more ____________ the crime, the less probative it is to truthfulness (2) the time of ___________ and the witness's subsequent history a. R: The more run ins the person has had with the law, the more ______________ it is b. R: The older the crime is, the ________ probative it is. (3) _____________ between the past crime and the charged crime (4) the importance of the _______________ testimony (5) the _____________ of the credibility issue a. R: the more important that defendants _____________ is, the more likely that the prior conviction is going to get in

5 Factors of this weighing test: (1) nature a. R: violent (2) conviction R: probative R: less (3) similarity (4) defendant (5) centrality a. R:credibility

After an amusement park was shut down for safety reasons, the owner brought some local reporters in to show them that he the owner, would ride all the the rides. The owner tries to introduce this into court to show that the rides were safe. Which is the most correct? A. This is hearsay B. This is not hearsay C. This is evidence of motive D. This is evidence of effect on the listener.

A. This is hearsay. It is one of those rare acts that is a statement-- communicative intent.

A speeding car killed Marietta Rathbun's husband as he crossed a street in Bayonne, New Jersey. The car didn't stop. At trial of Rathburn's suit against Bruno Brancatella, Rathburn offered the testimony of a Mr. Menandier and a Miss Sullivan to prove the license plate number of the fleeing car. Each recounted his or her actions at the time: Menandier, a bystander, attracted by the noise of the impact, observing the character and color of the license plate upon the colliding machine, called out, in a loud voice, to Miss Sullivan, another observer, the number he had observed. She, for the purpose apparently of remembering the number, entered her home and wrote the number upon an envelope. For some time she retained the envelope, and used it as a reference for the purpose of enabling her to testify at various proceedings emanating from the accident. Among others she imparted the number to a police official-Officer Grant-within ten or fifteen minutes after the accident...Other evidence established that "the number thus transmitted was the number of the Δ's car." Assume these facts: (1) Sullivan testified first. She admitted she never saw the car's plate. She testified that although she was certain she wrote down the number Menandier called out, she no longer remembered it. When Rathbun's counsel handed her the envelope, Sullivan identified it as the memo she made of the plate number. But seeing the envelope, she said, did not refresh her memory of the plate number. Rathbun's counsel then offered the envelope as an exhibit to prove the car's license plate number. On Brancatella's objection, how should the judge have ruled? (2) Menandier than testified that he memorized the plate number on the speeding car by reciting it over and over. When Rathbun's counsel asked him the number, however, he said it had slipped his mind. Rathbun's counsel showed him the envelope and asked if it refreshed his memory. Menandier said it did and then recited the number without looking again at the envelope. If Brancatella objected to this procedure, how should the judge have ruled? (3) After the events described in paragraph (1), the judge refused to admit the envelope as an exhibit. If Rathbun's counsel again offered the envelope at the conclusion of Menandier's testimony and Brancatella again objected, how should the judge have ruled

Answer (1) you can't offer it as an exhibit, but so long as she admits she wrote it and it was accurate, she can read it in (2) that is not allowed because she was not the one who wrote down the envelope, but it may be used under 612, but the envelope has to be given to the other side

On January 12 Henry Browning, aged 80, called his lawyer. He reported that his caretaker, Deborah Maples, had pushed him during an argument on January 11 and that he had fallen and hit his head. Browning said he had decided to fire Maples and wanted to be sure that doing so would not expose him to a lawsuit. Later that day Browning visited his doctor. He reported the same events he had told his lawyer and added that since his fall, he had suffered from severe headaches and bouts of nausea. At Maple's trial on charges of battery and elder abuse, Browning took the witness stand, but gave confused and largely incoherent testimony. The prosecutor offered in addition the following evidence: 1. The lawyer's testimony that Browning said he had fallen and hit his head; This might get in under present sense impression 2. The doctor's testimony that Browning said he had fallen and hit his head; admissible under 803(4) 3. The doctor's testimony that Browning said Maples had pushed him. This can come in. Names always come in when the person tells the doctor who caused an injury. If you name the person who did it, you can prevent it from happening again by taking the person out of the situation. It relates to treatment; the treatment is the removal of the victim from the exposure of that harm. 4. Normally claims as to fault don't go to statements of claims for diagnosis or treatment. This is an exception. On the Δ's objections to all this evidence, how should the judge have ruled? Suppose the doctor testified that she specifically asked Browning what caused his fall because her diagnosis depended on whether he fell during a dizzy spell or suffered some other sort of accident. Would this fact change any of your answers? (Please ignore any privilege Browning might have in the confidentiality of these conversations.)

Answer: (1) might could come in under present sense impression or excited utterance 803(1) (2) comes in under 803(4) - naming the injury and circumstances giving rise to (3) pushing is relevant ("how" fell), identity of attacker could be used to prevent repetition of abuse or cause for intervention - separating the victim from the attacker can be considered part of the treatment (used for elder abuse, child abuse)

On March 3, 1986, Joan Lacher attended a bridge club gathering at the Anderson's home. While looking for a bathroom, Joan opened a door, stepped into the darkness, and fell down a flight of stairs. On March 11, Bob Smith, an adjuster for the Anderson's insurer, visited Joan in the hospital. Joan voluntarily gave a tape-recorded statement describing her recollection of the accident. The Lachers brought this action for personal injuries and loss of consortium caused by the Anderson's negligence. The case was tried to a jury, which returned a verdict finding the Andersons had not been negligent. The Lachers assert the trial court erred in refusing to allow them to present evidence that Bob Smith was employed by the Anderson's insurance company. The Anderson's used the tape-recorded statement to impeach Joan at trial. Smith did not testify before the jury. The Lachers argue evidence of Smith's employment by the Andersons' liability insurer was relevant to show his bias and prejudice in taking Joan's statement. At trial, Joan asserted, upon recollection, she was mistaken in some particulars when she made the statement to Smith in the hospital. Specifically, she disputed part of the statement where she said she has been in the Andersons' house at least a dozen times before the accident. Was the trial judge right to exclude evidence of Smith's employment? What are the arguments on both sides?

Answer: Bias - incentive to reduce liability. Still have to do a 403 analysis and see if not substantially prejudicial

Recall the facts of United States v. Barrett. Barrett and several others were charged with stealing a stamp collection from a philatelic museum in March 1973. The government's evidence suggested that Barrett's accomplices included "Buzzy" Adams and Ben Tilley. Consider these additional facts, arising during the defense case: James Melvin testified that in February 1974, he was at a card game on Bowdoin Street, in Dorchester, Mass, with Ben Tilley. When Melvin was asked to recount a conversation which he had there with Tilley, the Government objected. Barrett made an offer of proof that Melvin would testify that Tilley had told Melvin "that he, Tilley, and Buzzy were going to have some trouble from the people from California" with respect to the stamp theft or matter, and the Melvin asked him did he mean Bucky or Buzzy, and then Tilley said, "No, Bucky wasn't involved. It was Buzzy." Barrett argued on appeal that the trial court erred in refusing to admit Melvin's proposed testimony and claimed that Tilley's statement was admissible as a statement against interest. Was he right? (Assume Tilley was unable to testify).

Answer: Could be against your interest because the few people you implicate in the crime, the more you implicate yourself. Implicating someone else isn't against your interest.

F.T. arrived at the hospital on April 12, 2003, with a blowout fracture to her right orbit. At the assault trial of Andre Robinson, the father of F.T.'s children, she testified that her injury occurred when she peeked out of her bathroom door after an argument with Robinson, and he "pushed the door open, causing it to hit her" and inflicting the injuries to her eye. F.T. dismissed the incident as "an accident." The prosecutor also offered the testimony of a treating nurse who said F.T. told her on April 2, 2003, "My kids' dad came over drunk; got to argue with me and then with an open hand slapped me really hard on the face." The trial court admitted the nurse's testimony over Robinson's hearsay objection, and he was convicted. On appeal the prosecution sought to justify admission of the nurse's account under the state's equivalent of Rule 801(d)(1)(C). How should the court have ruled? Assume that F.T.'s trial testimony and her statement to the nurse were the only accounts of her injury offered at trial.

Answer: Doesn't fall under the rule 801(d)(1)(C) because no real identification, no real lineup scenario (not admissible under ID). What about party-opponent? Problem is the victim isn't a party in a criminal case.

To prove the Jeffrey was short on cash in March 2008, the prosecution calls on of his friends as a witness. She testifies that sometime in March she asked Jeffrey, "why don't you replace that beat-up carcass of a bicycle?" According to the witness, Jeffrey said nothing in response. Instead he held up his right hand and rubbed his thumb together with his index and middle fingers- a gesture the witness recognized to mean money. Is the witness's testimony about the gesture hearsay?

Answer: Hearsay; B/c out of court statement offered to prove the truth of the assertion made by the declarant. The gesture was meant to be a statement asserting he was short on cash. For Gestures, Ask if the act is the equivalent of sign language. Is the person speaking but not through their mouth? Eating a burger - telling you it is safe to eat - must be done for the purpose of making the statement (if filmed secretly eating burger, not a statement) Carrying a sign is a statement Wearing a sash in support of a political group is a statement

Problem 7.14: In 1990 in San Mateo County, California, George Franklin was tried for the murder of 8yr old Susan Nason 21 years earlier. The prosecution's chief witness was Franklin's daughter, Eileen Franklin-Lipsker, who had been a childhood playmate of Nason and who claimed she saw the murder. Shortly before trial, Franklin-Lipsker visited her father at the county jail. At trial she testified about this visit. The prosecutor gave this summary of Franklin-Lipsker's testimony during closing argument: An when Eileen goes to visit him in the jail in January of this year, what happens? Well, imagine-just, if you can for a moment, think about it. Assume for the moment that Mr. Franklin is not guilty. He has not committed this murder; he knows it. He didn't do this. And he learns that his daughter, who is accusing him of this murder, who has caused him to be arrested, is there to see him at the jail. What is he going to say to her? What would any innocent person in a similar situation do? Eileen, why are you doing this? You know it's not true. Whatever it is, we'll talk about it. Don't do this to me. You know it's wrong. You're lying. Are you sick? Are you angry? What is going on? Why are you falsely accusing me? Does he say any one of those things? No. It's Eileen who says to the Δ: Dad, a lot of what I am is because of you. And you did some good things for me: You told me to always tell the truth-and that's what I'm doing-and you always said that the truth would set you free. Doesn't that apply to both of us? Those were Eileen's words to her father. And what was his response? Ladies and gentlemen, Mr. Franklin's response was to point to a sign that says: "Notice. This station may be monitored." Now, what does that tell you? That tells you law enforcement might be monitoring their conversation...He believes the conversation is being monitored, and he does not deny a false accusation of murder? Well, why bother? Why bother to deny it when the only two people there are the two people that know? Assume the Δ objected to Franklin-Lipsker's testimony about this meeting on hearsay grounds. On what theory could the prosecutor argue for admission of Franklin-Lipsker's statement to her father? Was the judge right to allow the evidence? Does it affect your answer to know that before his incarceration, authorities advised Franklin that he had the right to remain silent and that anything he said could be used against him?

Answer: Is this an adoptive admission? He didn't deny it, but was he really at liberty to respond? Probably not because he had been mirandized Prior to hearsay, we offered words previously not for the underlying truth per se (prior inconsistent statements) We can offer adoption for the same reasons Miranda doesn't apply between lay people

Ronald Keiser is charged with shooting and paralyzing Victor Romero. Keiser claims he acted in self-defense. During a break in the trial, Romero encounters Keiser's brother in the courthouse hallway and shouts to his friends, "There's his brother. I want you to remember his face, remember his face." Keiser's lawyer now seeks to offer testimony about this incident as evidence of Romero's violent nature. If the prosecutor objects, how should the court rule?

Answer: It is a specific incident and should not be admissible. If Δ is the only one who can open the door for peacefulness, he can only do it by reputation or opinion. If Π wants to rebut, can bring in specific instance through 405(b) on cross OR Π could call another witness to get reputation or opinion under 405(a)

The Supreme Court rejected the prosecution's attempt to offer a five-year-old child's hearsay account of alleged sexual abuse under Rule 801(d)(1)(B). When the Tenth Circuit Court of Appeals heard the case on remand, the government argued that the statements the child made to Drs. Karen Kuper and Laura Reich were also admissible under Rule 803(4). Tome's counsel called the court's attention to these portions of the trial record: Cross-examination of Dr. Karen Kuper: Q: [by defense counsel]: Do you let [patients] know that you're there to help kids? A: I don't believe I use the term exactly, no. Q: Do you ever talk with a child about truth telling? A: No, I don't. Cross-examination of Dr. Laura Reich: Q: Did you talk to her at all about the importance of truth telling with you? A: No, I didn't talk to her about that. Q: Did you get any sense that she-if anyone else had talked with her about that, that it was important to tell you the truth? A: No, that particular issued didn't come up. I didn't get any sense of that. Q: Did you talk with her at all about what might happen if she didn't-wasn't completely honest with you about things? A: No, I didn't. How, if at all, should this testimony affect the admissibility of the child's statements under Rule 804(3)?

Answer: No requirement for informing children of the importance of telling the truth - belief they will more likely tell the truth anyways. Colloquy wouldn't affect rule or admissibility

On cross-examination of Louise Johnson, the Δ's alibi witness, the prosecutor asks, "didn't you state on an application for a bank loan that you had no outstanding debt, when in fact you still owed 82K in student loans? Johnson answers, No. May the prosecutor now call the bank's loan officer to testify that Johnson indeed claimed she had not outstanding debt as well as a record-keeper from the student loan agency to testify about the status of her student loans? On cross of Johnson, the prosecutor asks, "Aren't you in business with the Δ's father? Johnson answers No. May the prosecutor now call a witness to testify that Johnson is in business with the Δ's father?

Answer: No. This is not a question of 609 b/c no evidence of conviction. He's asking under 405(a) as to specific incidences of untruthfulness. Cross exam can always ask specific act of untruthfulness - whenever person testifies otherwise, can ask specific instance under 608(b). Answer: This is bias; it is usually admissible and is provable like any other material fact of a case. Bias is always releveant and can always be proved up

On March 27, 1984, Martin Weil died unexpectedly at the age of 54 yrs. Weil's treating physicians could not explain the cause of his death nor could they account for a series of recent medical problems which he suffered from prior to his death. An autopsy and a subsequent investigation into the treatment that Weil received from his allergist, Dr. Seltzer, were very interesting. Dr. Seltzer had treated Weil for more than 20 yrs and over the course of this treatment Dr. S regularly prescribed medication which Weil was led to believe were antihistamines. After Weil's death, however, it was determined that Dr. S had been prescribing drug called prednisone, which is a steroid. It became apparent that Weil's illnesses were attributable to his long term ingestion of steroids proscribed by the Dr. Weil's estate filed suit against Dr. S and contacted eight of Dr. S's former patients and learned that each had been treated by Dr. S for many years and they were prescribed pills which Dr. S represented to be antihistamines and decongestants. All the patients later learned the pills prescribed by Dr. S were in fact steroids. Assume that Seltzer's defense at trial is that he never prescribed steroids to Weil and that Weil must have received them from another of his many doctors. If Π seeks to offer evidence that Seltzer prescribed steroids to the 8 other patients, how should the court rule?

Answer: Probably not enough evidence to be so persuasive or concrete enough. Cannot tell the frequency with which the Dr.'s conduct happened.

Angelita Kettles was the government's chief witness at the trial of Vernon Bonner, charged with swindling Kettles out of her Veteran's Administration benefit payments. Trial ended in Bonner's conviction. On appeal he challenged the admission of testimony by two character witnesses who told jurors of their high opinion of Kettle's honesty.

Answer: Should not be admissible b/c the evidence was used to show bias. Bias evidence is NOT character for truthfulness evidence.

1. On March 23, 1973, Daniel Mahlandt, then almost 4 years old, was sent by his mother to a neighbor's home on an adjoining street to get his older brother. Daniel's path took him along a walkway adjacent to the Poos' residence. Next to the walkway was a five foot chain link fence to which Sophie had been chained with a six foot chain. In other words, Sophie was free to move in a half circle having a six ft. radius on the side of the fence opposite from Daniel. Kenneth Poos, as Director of Education for the Wild Canid Survival and Research Center, had been keeping the wolf at his home. Sophie was chained b/c she had jumped the fence and attacked a beagle. A neighbor heard the child's screams and went to his window, where he saw a boy lying on his back within the enclosure, with a wolf straddling him. The wolf's face was near Daniel's face. Daniel had lacerations of the face, left thigh, left calf, and right thigh, and abrasions and bruises on the abdomen and chest. Assume that both the beagle's owner and Daniel sue Kenneth Poos for damages caused by the wolf. And assume that each Π attempts to introduce evidence that Poos chained the wolf after learning of Sophie's attack on the beagle. If Poos objects to admission of the evidence at both trials, how should each court rule? What policy might justify the answers Rule 407 gives to this question?

Answer: The beagle owner could not introduce the evidence b/c the chaining of the wolf was a subsequent measure and you cannot use that to show negligence/liability. The Mahlandts may introduce the evidence b/c for their case it was not a subsequent remedial measure (actually a previous measure). i. Inadmissible for beagle case but not for little boy case.

a. Returning home from her accounting office for lunch, Monica found her husband sick in bed. "I think I ate some bad meat," he said and pointed toward an empty takeout food carton from the Downtown Deli that was on the bed table. "You'd better get me a doctor." Monica's husband later died of arsenic poisoning. Monica sued the Downtown Deli, alleging negligence in supervising a disturbed employee who had poisoned some of the restaurant's food. At trial she offers the following evidence: (1) Her own testimony about her husband's statements and gesture—offered to prove that he had eaten food from the Downtown Deli. (2) A nurse's testimony that when Monica called the doctor's office that day, she said, "My husband told me he ate some bad meat from the Downtown deli"-offered to prove that Monica's husband had eaten food from the Downtown Deli. (3) Monica's own testimony that when the doctor arrived at their home, the doctor said, "This has all the signs of arsenic poisoning. We'll have to hospitalize immediately"- offered to prove that Monica's husband showed signs of arsenic poisoning. If the Deli's counsel objects that each of these statements is inadmissible hearsay, how should the court rule?

Answer: The gesture was an act that counts as a statement and as hearsay. (1) Could possibly come in under 803(1), 803(3), at least the part about eating bad meat. The identity of the Restaurant may not come in. The Identity of the Restaurant would probably get in under the medical diagnosis because it helps with the diagnosis. (2) & (3) are probably ok as well. Sometimes sick people make statements to third parties who then relay the statements to the doctors. The doctor's statements as well should be ok as it is related to the treatment of the patient. i. Yes, under 803(4) - I need a doctor and her is why ii. Hearsay within hearsay - nurse "wife said" "husband said"

Late on a February night, the Partridge Restaurant was gutted by fire. The restaurant, owned and run by Alice Ramsey, leased space in a building owned by Cityscape Properties. After tracing the license plate number of a car seen fleeing from the scene, a police arson investigator drove to the home of Michael Akker. Akker gave her the following statement: "I owed Alice Ramsey a few favors, and she asked me to torch the Partridge for her so she could collect on the insurance. I drove to the restaurant with a can of gas the way she told me. But I lost my nerve when I remembered that a family with two little kids lived upstairs from the restaurant. So, I just poured a little bit of gas into the window. Then I lit it and took off." Cityscape Properties sued Alice Ramsey for willful destruction of property. Under the relevant law, Ramsey would be liable if she incited or participated in the burning of the building. At trial, Akker refused to testify, citing his Fifth Amendment privilege against self-incrimination. Cityscape's counsel called the investigator as a witness. When the lawyer asked the investigator what Akker had told her, Ramsey's counsel objected. After a conference with the lawyers out of the hearing of the jury- and despite the Δ's continuing objection-the judge permitted the investigator to testify as follows: "After Mr. Akker waived his Miranda rights and agreed to speak with me, he said: "I drove to the restaurant with a can of gas. But I lost my nerve when I remembered that a family with two little kids lived upstairs from the restaurant. So, I just poured a little bit of gas into the window. Then I lit it and took off." Assume the Π presented independent evidence linking Ramsey and Akker. If Ramsey is found liable after trial and appeals, how should the reviewing court rule on her claim that Akker's statement was inadmissible hearsay?

Answer: The statement made by Akker is a statement against interest as to his own involvement. There is no reference to Ramsey. It was only regarding Akker's own statement. Π is trying to show Akkers admission of involvement of arson. Akker and Ramsey have a relationship. Here's Ramsey buying some chemical unique for arson. Putting all these facts together, the jury can conclude that Ramsey was involved.

A large group of individuals injured in rollover crashes of a particular SUV brought a class action lawsuit against the automaker. Fearing that the Πs' chief witness, who was ill, would die before trial, Πs' counsel secured an affidavit from her. Her affidavit stated that she had watched rollover crash tests conducted by the automaker two years before the first fatal crash. In these tests employees of the automaker had induced explosions in tires of SUVs traveling at normal highway speeds. The explosions caused many of the vehicles to roll over. The witness signed the affidavit under the pains and penalties of perjury. The witness died before trial. At trial Π's counsel offers the affidavit to prove that the automaker's own tests had demonstrated the rollover hazard. Is the affidavit hearsay?

Answer: The statement was made out of court and there was no way to cross-examine. Hearsay - classic example

On January 26, 2001, an elderly woman who lived across the hall from Diane Whipple made the following 911 call to police: Esther Birkmaier, Whipple's neighbor: Yes, I'm just a wreck. Please send police to Pacific Avenue, corner of Fillmore. We have two dogs rampaging out in the hall up on the sixth floor, and I think they have their-you know even their owner cannot control them. They are huge. 911 Operator: OK, the owner knows that the dogs are in the hallway? Birkmaier: Oh, I think they're attacking the owner too, I reckon. She's screaming right now, and I don't dare open the door b/c these dogs are huge. 911 Operator: what kind of dogs are they? Birkmaier: Well I-you know I don't know. They're bigger than a police dog. Please hurry, I hear her screaming and I don't dare open the door. These dogs are ferocious. 911 Operator: Yes, ma'am. Don't open your door. We'll get somebody right over there Ok? Δ Marjorie Knoller, who had charge of the dogs at the time they killed Whipple, offered this tape in evidence at her trial on murder and manslaughter charges resulting from the incident. Knoller claimed tape support her account that she struggled in vain to gain control of the dogs as they attacked Whipple. The prosecutor objected on hearsay grounds tape's admission. How should the court have ruled?

Answer: There is a problem with the second statement about "Oh, I think they're attacking the owner too, I reckon." This may be a problem with rule 602 requiring personal knowledge. Because she was behind the door and did not see it, just hearing it may not be enough. All witnesses MUST have personal knowledge. The first comment, "Yes, I'm a wreck. Please send police, etc." is an excited utterance.

1. On July 4, 1998, Impson and his wife, Lori, engaged in a heated argument when Lori canceled a family outing. The argument ended with Impson leaving and Lori calling the police. When police officers arrived at the family residence, Lori was crying and upset. She told the officers that Impson had knocked her down and pushed her head into a wall. Lori rubbed her head as she related the story of Impson's violence toward her. Officer Boyd Martin did not see any marks on Lori's head, but he did observe that her knees were scraped. When asked about her knees, Lori stated that they had been scraped when she hit the floor after Impson knocked her down. At Impson's trial, the prosecutor called Lori as a witness, and although she did acknowledge that she had argued with Impson, she denied that he hit her or pushed her head into the wall. During the State's case-in-chief, Officer Martin testified that immediately after the battery occurred, Lori told him that Impson had knocked her down and rammed her head into the wall. Assume defense counsel objected to Officer Martin's testimony about Lori Impson's statements to him. Was the trial judge right to admit the evidence?

Answer: This happens a lot in domestic violence cases. You need substantive evidence. We want to show that the husband did in fact beat her up. This could come in under present sense impression b/c it was a statement made while the declarant was perceiving the event and was made immediately after. Could also be an excited utterance b/c it was made while she was still under the stress of the situation.

Assume that at his new trial, Mariotta successfully introduced the evidence at issue in Biaggi: When offered immunity in exchange for information about wrongdoing by other Wedtech officers and certain public officials, Mariotta denied knowledge of such wrongdoing, and the Government withdrew its immunity offer. Later, in its rebuttal case, the Government sought to prove that when he denied knowledge of others' wrongdoing, Mariotta explained to prosecutors, "I'd rather face you guys at sentencing than those guys up some dark ally." If Mariotta claims that Rule 410 bars admission of this statement, what is the Government's best response? How should the court rule?

Answer: admissible because Δ brought up plea himself which makes it fair game b. Clearly it is not being offered against the defendant c. He opened the door

Problem 7.23: Roger Crewing and Sarah Morgan collided in an intersection. A police officer who came to the scene charged Crewing with driving under the influence of alcohol. Later, Morgan sued Crewing for injuries resulting from the accident. At the trial of this civil suit, Morgan testified about the accident and was cross-examined by Crewing's lawyer. Four months later, Crewing's drunk driving prosecution came to trial. In the intervening months, Morgan had suffered a serious head injury and was unable to attend the trial. The prosecutor sought to read into the record Morgan's testimony at the earlier trial. Crewing objected. How should the judge rule? What additional facts might the judge want to know?

Answer: argue motive is different (different case, different consequences, etc.). In grand jury, no opportunity to develop testimony

Assume Mattox is now on trial for Mullen's murder. The attending physician, who was called a little after nine o'clock and remained with the wounded man again between eight and nine, testified that Mrs. Hatch, the mother of Clyde Mattox, was present at that visit; that he regarded Mullen's recovery as hopeless; that Mullen, being "Perfectly conscious" and "in a normal condition as regards his mind," asked his opinion, and the doctor said to him: "the chances are all against you; I do not think there is any show for you at all." Counsel for Δ, after a colloquy and the court, propounded the following question: "Did or did you not John Mullen, in your presence and at that time, say in reply to a question of Mrs. Hatch, "I know your son, Clyde Mattox, and he did not shoot me; I saw the parties who shot me and Clyde was not one of them." This question was objected to by the prosecutor as incompetent and the objection sustained. Was the court's ruling correct?

Answer: could argue both ways, but the better argument is that it falls within the exception. It depends on whether he was expecting die soon. Must be imminent, must expect death, and must be about the cause of death.

To prove the Δ was the person who robbed Alice, the prosecutor examined Alice on the witness stand as follows: Q: What did you do at the police station? A: The detective had me look at a lineup of eight men. Q: Did you see the man who robbed you in that lineup? A: Yes. Q: What did you say to the detective? A: I said, "He's number three." Is this evidence hearsay? You may assume that the prosecutor also will call the detective as a witness and that she will testify that "number three" was the Δ.

Answer: this is hearsay b/c she's offering her own out-of-court statement in court for the purpose of proving the truth of the matter stated. Even if it is your own statement made out of court then brought in court, it is still hearsay. a. the witness can quote themselves (1) Note how this could have been different if the witness had just given the sequence of events rather than quoting herself— that she had looked at the line up and the defendant was number three, that is slightly different.

i. Proof of Motive On June 26, 1975, two Special Agents of the FBI, Jack Coler and Ronald Williams, were murdered in South Dakota. Leonard Peltier and 3 others were charged with the murders. Shortly before noon on June 26, Special Agent Williams, driving a 1972 Rambler and Special Agent Coler, driving a Chevy were following 3 individuals riding in a red and white van. The van stopped at a fork in the road. The agents stopped at the bottom of a hill. Williams advised Coler on the radio that the occupants of the van were about to fire on them. Firing commenced. The agents were struck and killed. At the trial, the gov't seeks to prove the following facts: November 22, Peltier was charged with attempted murder in Wisconsin. He was arrested, pleaded not guilty, and was released on bond. On July 29, he failed to appear for trial on the charge, his bond was forfeited, and a bench warrant was issued for his arrest. Peltier was aware of the outstanding warrant for attempted murder. Assume Peltier is tried alone. What is the government's best argument for admitting the evidence of his previous attempted murder charge. What are Peltier's best arguments against the admission? i. Answer—Motive is the best argument to get the argument in—say that the defendant knew about the warrant for his arrest and was acting accordingly 1. Would likely get past 403 because of the probative value of it

Answer—Motive is the best argument to get the argument in—say that the defendant knew about the warrant for his arrest and was acting accordingly 1. Would likely get past 403 because of the probative value of it

On March 31, 1983, appellant brought his four-year-old son, Allen Jr., to the Northwest Medical Center, Urgent Care Center in Tucson for the treatment of a broken arm. The boy was examined by Dr. Margaret Buford, who also observed what appeared to be a slap mark on the child's face and a mark on his chest. Appellant told Dr. Buford that he had slapped his child and that the child had then fallen off the porch. At trial the prosecutor questioned Dr. Buford as follows: Q: And can you tell us about your first conversation with the child? A: I initially approached the child and asked what had happened, and after initially not saying anything, the child told me that he had been playing with one of his father's records. [Defense counsel]: Excuse me. I'll object as not being part of the basis for the treatment, Your Honor. [The Court]: Objection is overruled. She may answer. Q: (By the prosecutor) You may answer. A: The child was playing with one of the father's records and got it dirty, and his father twisted his arm. The Δ was convicted of child abuse and appeals. Under Rule 803(4) and Iron Shell, what are his best arguments for reversal? How should the court rule?

Answer—So what gets in is that the father twisted his arm, but all the other stuff stays out so you could try and make the argument that the stuff about the record got dirty to prove that the arm twisting was abuse and not just trying to save the child from falling

1. Jacqueline LaMothe testified for the prosecution at Joseph Puleio's trial for a 1980 shooting death outside an Amesbury, Mass, bar. The Mass. Supreme Judicial Court summarized her account: Jacqueline LaMothe, the bartender, testified that while in the bar she heard a shot and then a scream, and that then someone ran into the bar and told her to telephone for an ambulance. She testified that after making the telephone call she went outside and "asked who had shot the gun once, and nobody answered me." Over the Δ's objection, LaMothe testified that Bonnie Eaton then "yelled out" a response to her inquiry. The Δ again objected, and counsel approached the bench. Defense counsel stated that he based his objection on the rule against hearsay.. The judge allowed the prosecutor to ask LaMothe, "What did Bonnie Eaton say?" LaMothe responded, "Joe Puleio." Was the trial judge right to admit LaMothe's response?

Answer—gets in under both present sense impression and excited utterance Classic hearsay b/c someone else said it and the witness repeated it. This can get around hearsay b/c present sense impression and under excited utterance. Potential problem here is personal knowledge. We do not know that the person who screamed Joe did it had first- hand knowledge. It has to be first- hand knowledge by the declarant. What test do we use to make that determination? The judge would have to decide under 104 if there was enough knowledge by the preponderance of the evidence.

i. Proof of Motive Tillie Moss sued the United Railways Company of St. Louis for injuries she suffered when thrown form one of the Δ's streetcars. The jury returned a verdict for the Δ railway, and Mrs. Moss appealed. Consider the opinion of the Missouri Supreme Court: The Π testified: That she desired to stop at Twentieth street. That she rang the bell for the conductor to stop there, but he failed to do so. Then she rang the bell for him to stop at Nineteenth street, which he also failed to do. (On motion from Δ, this testimony was stricken from the record.) Π the testified: that as she approached Eighteenth Street, she again rang the bell, the car stopped at the proper place. That she stepped safely from the platform of the car to the step leading to the street, but as she was in the act of alighting the step to the ground, and before her foot reached the ground, the car suddenly started rapidly forward w/o warning and threw her to the pavement and injured her. The ruling of the court in striking out Π's testimony that she rang the bell for the conductor to stop at 20th street, and again at 19th street, and that he had failed to heed her signal, is urged as error, for the reason is tended to prove that the conductor negligently started the car forward w/o giving Π a reasonable time to alight at 18th street. We think the court committed in striking out such testimony. The fact that the conductor would not stop at all, when Π rang the bell at 20th and 19th streets, is potent evidence to show that he would not or did not stop long enough for her to safely alight at 18th street

Answer—malice or rush can be articulated as motive—but the difference would be rushed all the time versus just rushed today OR malice towards this rider or malice towards all riders

In Baltimore & Ohio, the Π, Henthorne, was a brakeman for the Δ railroad. Henthorne was badly injured in a train crash. He alleged the crash was caused by the negligence of a drunken engineer, John Harrison, or by that of Harrison's employer, the Baltimore & Ohio Railroad. Π introduced further evidence to show that Harrison had a general reputation at the terminal stations of his run, as well as among the railroad men along the line of the division, of being addicted to the excessive use of intoxicating liquor. The Π introduced the depositions of a former superintendent, one Britton, and a former master mechanic, one Lowther, both of whom had left the company before the collision, who stated that Harrison had been discharged from the employ of the company while they were connected with it for negligence and drunkenness. The Π also introduced a witness who had testified that when as conductor of a train, with Harrison as his engineer, he was about to leave Chicago Junction, Fitzgerald, the yard master of the Δ company at Chicago Junction, cautioned him concerning Harrison's intoxicated condition and directed him to keep watch to prevent accidents. On what theory might this evidence have been admissible? How would you complete the judge's limiting instruction?

Answer—note that there are two defendants—RR & Harrison 1. Harrison—can't get it in—saying always drunk here drunk 2. RR—might could get it in to show that the RR was negligent in hiring him because he had a reputation for drunkenness and they seemed to ignore it 3. NOTE—only the jury cannot engage in propensity—others can - in this case, the employer could have and should have ((Harrison - claim is negligence - really no reason it could be introduced RR - could introduce Harrison's drunkenness in the past against the RR - it is propensity evidence, but not asking the jury to make the propensity determination/conclusion - asking employer to make the conclusion which is allowed))

An hour after witnessing a drug transaction from a lookout point, police arrested Davis and charged him with drug distribution. One of the officers posted at the lookout site identified Davis as the seller in the observed transaction. Davis claims the police caught the wrong man. No evidence of drug activity was found on this person at the time of the arrest. At trial the government seeks to offer proof that Davis previously was convicted of distributing drugs. The government argues that the past conviction is evidence of Davis's knowledge of the drug trade-and therefore of his identity as the seller in the transaction describes. Admissible?

Answer—probably not enough to chin the bar to prove knowledge—not unique enough—anyone can know how to sell drugs 1. 403 would definitely keep it out because the prejudicial effect is highly more damaging than trying to prove someone knows how to sell drugs

In February 2012, a Silicon Valley computer maker shipped several dozen desktop computers to the Ronald Reagan High School in San Francisco. Then it discovered that San Francisco has no RRHS. An investigation revealed that a hacker had penetrated the computer maker's encryption system and placed the order directly with the shipping department, bypassing the sales department and customary credit checks. In March, while the investigation was ongoing, the computer maker discovered an order had been placed for fourteen laptops to be delivered to a nonexistent accounting office in Las Vegas. Whoever placed this order had managed to penetrate the company's encryption system. Delivery was scheduled for March 23 to a Las Vegas warehouse. Police staked out the location. When the Δ, who proved to be a 17 yr old high school senior from Boise, signed the delivery, police arrested him. The Δ was charged in separate federal indictments with two counts of interstate wire fraud, one relating to the February incident and one to the March incident. He pled guilty to the latter charge, but insisted he was not guilty of the earlier theft. Before the D's upcoming trial on the February charges, the prosecution gave notice to defense counsel that it would seek to offer evidence of the later theft. If the D now brings a pretrial motion to exclude evidence, how should the court rule?

Answer—should let it in because it is knowledge 1. Prejudice is high because it is the exact same crime 2. Note that something like, this kid goes to math and science school is show knowledge isn't propensity at all Answer: Evidence can go around the propensity box due to knowledge (specific knowledge to do a specific act) - not introduced to show always a criminal, but to show knowledge. Must show knowledge of first event - even though this is the second event - not enough to knock it out. Still must do a 403 analysis - unfair prejudice is enhanced by the fact it is the exact same crime (balance to probative value).

Sam testifies in the trial against Julie for the murder of Jeb that Sam heard Jeb tell Julie that he, Jeb, intended to tell the police imminently that Julie was involved in a series of robberies, one of which is the subject of a trial. Which of the following is correct? A. This is hearsay B. This is not hearsay C. This is hearsay admissible under an exception D. The 6th amendment precludes this testimony

B. This is not hearsay because it is not offered for the truth of the matter asserted. It's offered for the affect on the listener. The statement was not offered to show that she was going to squeal.. it's offered to show what motivated the person to kill her.

Jim is charged with negligent homicide, after he killed Shelley in a car accident. The prosecutor wants to introduce evidence that Jim was previously charged with killing someone in a car accident. Which of the following is the most correct? A. This is permissible under 404 as knowledge B. This is permissible under 404 as plan C. This violates 404

C. This violates 404. Not evidence of plan or knowledge

As the Δ's trial for first-degree murder approached, the prosecutor offered to permit the Δ to plead guilty to second-degree murder. He spurned the offer. In her opening statement at trial, the prosecutor promised the jury she would prove that the Δ premeditated the killing and is therefore guilty of first-degree murder. During the defense case, the Δ sought to offer evidence of the prosecutor's earlier proposed deal. The prosecutor objected. When the judge asked defense counsel to explain the relevance of the evidence, he said he offered it to show: 1) The prosecutor herself perceived weaknesses in the government's case; and 2) The Δ displayed a consciousness of innocence in rejecting the government's offer-that is, guilt person might have taken the deal. Should the trial judge admit evidence of the prosecutor's offer for either of these purposes?

Can't use against Δ, but Δ is offering it so its not against him. Still needs to survive 403 analysis (Π can suffer undue prejudice). If Π had offered complete immunity or some extremely low sentence - would be more probative - someone guilty would be less likely to turn down such a good offer. 1. This is a context in which the prosecutor could get in info about the same plea deal because the defendant opened the door on it a. Remember—the prosecutor can be unfairly prejudiced (it's harder but it is possible)

Staying Put: A local businessman stands charged with the murder of a young woman. For 7 weeks before her body was found, her disappearance had been a matter of mystery and great concern about town. At trial, the Δ seeks to offer evidence that even while suspicions of his involvement mounted- and despite ample cash reserves to fund a getaway-he made no attempt to flee the community. If the prosecutor objects, should the judge allow the evidence? What are the best arguments on both sides?

Defense: Could show an innocent mind. Prosecutor could say waste of time Argument that evidence should be allowed, its evidence of nonflight so it plays more to a conscious of innocence - it's the converse of flight so it should be relevant --NOTE: So a lack of running may have no effect of whether he was conscious or not of guilty, but it may add to the probability

An armored truck was robbed by a man and a woman acting as a team. Armed with substantial evidence, police charged Magnolia Sharp with taking part in the crime. Then, acting on a tip, a police detective went to the home of Robert Barton. After the detective rang the bell, Barton's mother came to the door. The detective explained that she wished to speak to Robert in connection with an armored truck robbery. Barton's mother turned to her son, who stood nearby, and asked, "Bobby, did you rob that truck? Don't lie to me." Barton replied, "Ask Magnolia. It was her idea." At the joint trial of Magnolia Sharp and Robert Barton, the prosecutor seeks to offer evidence of this conversation against both Δs. Sharp objects. What are the government's best arguments for admitting the evidence against Sharp? What are Sharp's best arguments against? How should the court rule? (You should assume that Barton's Fifth Amendment privilege make him unavailable as a witness for the government at trial. For now, please ignore any Confrontation Clause concerns, which we take up in the next chapter.)

Exception—statement against interest BUT only against the guy, not magnolia and it is cooberated ALSO statement made by a party opponent

Impeachment & Character For Truthfulness General - saying this person is a liar so he is lying here i. A lawyer impeaches a witness by ...? ii. Mistaken—mistaken is not propensity and can ____________ be attacked iii. Rule 404(a)(3)—explicitly allows for propensity evidence of a witnesses character to prove that the witness has the character trait of liar and is _______________. iv. Rule 607—either party can open the door on the witness's credibility - civil and criminal cases (either party can impeach a witness—only time u call a bad witness is when ...? v. Every single time a witness takes the stand, their _________________________ is put at issue vi. You can't bolster your witness before the other side attacks your witness.

General - saying this person is a liar so he is lying here i. casting doubt on the witness's accuracy or truthfulness ii. always iii. Rule 404(a)(3)—lying in conformity with that trait now. iv. Rule 607— u know the other side is going to call them anyways and you want to start with the attack) v. character for truthfulness (or untruthfulness)

Evidence of Flight General R: Evidence of flight is ___________ Standard: Whether a jury could ______________ there was flight. R: it is universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct are admissible as evidence of __________________________. R: Flight is when you seek to arrest someone and they _________________—that is evidence that they have a consciousness of guilt and that the culprit views himself as guilty of something 1. R: ____________ in another jurisdiction is arguably evidence of flight resulting from a consciousness of guilt Using a false name increase the ______________ of this circumstantial line of proof NOTE: you can make a 104(b) or 403 objection to flight. 104(b) Objection R: flight is an admission by ___________ R: its probative value as circumstantial evidence of guilty depends on the degree of confidence 4 inferences can be drawn—each a step building on the one before (1) from the defendants ________________ to flight (2) from the flight to __________________ (3) from consciousness of guilt to consciousness of guilt concerning ______________ and (if you're gonna run then commit more than one crime and they can't prove this element) (4) from consciousness of guilt concerning the crime charged to _____________ of the crime charged. e. NOTE: all 4 inferences must be made for the prosecutor to add in evidence of flight which is the 104(b) objection—flight is the end game, and you have to prove each of these steps along the way vii. 403 objection 1. 403 objection may come in with the _______________________ to prove his innocence with why he fled

General R: relevant Standard: reasonably believe R: consciousness of guilt and thus of guilt itself. R: run on the spot or thereafter—that is evidence that they have a consciousness of guilt and that the culprit views himself as guilty of something R: presence probably force 104(b) Objection R: conduct (1) behavior (2) consciousness of guilt (the behavior of flight to consciousness of guilt) (3) the crime charged (4) actual guilt vii. 403 objection 1. explanation that the defendant has to give a. Ex. If the defendant had to admit to another crime to prove that the other crime is the one that he fled because of.

Several undercover police officers noticed what appeared to be several persons engaged in drug transactions in the backyard of a house. Officer Dunston saw two people in the yard: Robert Beckham was in a chair in the walkway leading up to the rear door of the house, and Monica Monroe sat on a bench approximately two feet away. As Officer Dunston approached the yard, Monroe inquired, "Are you looking?" Officer Dunston said that he was, and Monroe asked if he wanted a "a fifty," which the officer took to mean a fifty dollar rock of crack. Officer Dunston replied yes, walked into the yard, and stood directly in front of Monroe, who reached into her pants pocket and produced a clear Ziploc bag containing a single rock of crack. Beckham remained seated two feet away. Officer Dunston inspected the rock and asked Monroe if he could purchase another fifty. Monroe replied, "I only had one, but you can get another from my buddy," At that moment, Beckham got up from his chair, walked past Dunston and Monroe to the far end of the bench on which Monroe was seated, and removed a large plastic bag, which contained numerous smaller Ziploc bags, from underneath the bench. As Beckham began to open the bag, Officer Dunston identified himself as a police officer and arrested both Monroe and Beckham. The large plastic bag was found to contain slightly more than 13 grams of 89% pure crack, packaged in 34 smaller, $50 bags....Beckham argues that the district court erred in denying a motion in limine and permitting the prosecution to introduce through Officer Dunston Monica Monroe's statement, "I only had one, but you can get another from my buddy." It is asserted that this statement was the most important evidence of Beckham's intent to distribute. Monroe failed to appear for trial and was therefore unavailable to testify and to be cross-examined. If he had cross-examined Monroe, Beckham tells us, she would have said, as she apparently did later at her own trial, that her statement had been "you can get another from anybody," not from "my buddy"... In affirming Beckham's conviction, the appeals court held there was insufficient evidence of a conspiracy between him and Monroe to admit her statement against Beckham under the coconspirator exception to the hearsay rule, FRE 801(d)(2)(E). On what other theory was Monroe's statement (assuming she said "my buddy") admissible against Beckham?

Hearsay—EXCEPTION—adoption by silence (adoptive statement).. when someone says something in front of another person that would usually calls for a response but that person heard it but refuses to respond, we can presume they adopted the first person's statement through her silence.

Louise Phillips, as associate at a large law firm, sued an airline after suffering injuries during an unusually rough landing. She claimed her injuries prevented her from working to her full capacity. At trial the defendant offers records signed by Phillips in which she billed clients an average of 104 hours per week during the six weeks after the flight. If offered to prove her capacity for work was not in fact diminished, are the records admissible over Phillip's hearsay objection?

Hearsay—but EXCEPTION. Opposing parties own statement

In April 1981, an undercover agent of the Rochester police department, posing as an organized crime figure, purchased fourteen ounces of heroin from N., who is the cousin of defendant, Y. N identified Lebanon as the source of the heroin and told the agent that various family members based in Lebanon regularly transported drugs to the United States. Hoping to catch other participants in N's drug smuggling scheme arranged for a more substantial purchase or heroin. On August 17, 1981, the agent and N. traveled to Kennedy Airport to await the arrival of N's Lebanese "courier." N informed the agent that his cousin Y would be transporting the heroin. Y was to deliver a black attaché case containing heroin to whoever handed him a passport size photograph of Y. The agent intercepted Y as soon as he left the aircraft. As arranged, Y exchanged the attaché case for his photograph. Inside the attaché case was a smuggler's vest that contained 1,823 grams of 53.8% pure heroin. The three persons boarded a flight to Rochester, the planned destination. During the course of the flight the undercover agent posed a number of questions to Y. As Y spoke no English, and the agent no Arabic, N acted as interpreter. In response to the agent's inquiry as to the quality of the heroin, Y responded (according to N's translation) that is was so strong that when he packed the heroin into the vest, his nose bled. At the Rochester airport, agents sought to arrest both Y and N. N resisted apprehension and was killed in a gun fight... At Y's trial, the Government calls the undercover agent as a witness and asks him to relate the conversation on the airplane. Y objects. Should the court admit the evidence of N's translation of Y's statement? What are the best arguments for and against admissibility?

Hearsay—gets in under the coconspiracy exception

1. Immediately after arriving in Vermont after 10 p.m. on the evening of February 25, 1987, and while carrying his ski boots from the parking lot, the then 33 year old Kevin Pappas slipped and fell on a dome of ice on a walkway that ran alongside a building leading into a condominium that he and a group of friends had rented for a 5 day ski vacation. He suffered a severely broken ankle that required three operations, and which later was surgically fused. Plaintiff's suit sought damages [from the condominium management company.] After Pappas fell, Sherry Cherris telephoned the management company, using a number she found pinned on the refrigerator, complaining of the walkway's icy condition. A man with a shovel and a bucket eventually appeared. At trial, plaintiff sought to introduce through Ms. Cherris the statements this [man] made regarding the performance of [other] employees in maintaining the walkway...The personnel manager declared that one of two employees responsible for snow and ice removal would have been on duty on the night of the accident. Assume the man with the shovel and bucket (who was never identified) told Ms. Cherris, "Those guys on the day shift were supposed to shovel and salt, but they bagged it and went home early." Should the court admit evidence of this statement against the condominium management company.

Hearsay—possible exception is statement by agent or employee. i. Judge will decide if he is an agent or employee—but that seems pretty obvious ii. Judge has to find more evidence that just the statement that he made, but the fact that he showed up after the call, with the materials to take care of the problem is that other outside evidence that is needed iii. Probably gets in

1. In a well-known article exploring the definition of hearsay, Laurence Tribe presented the following hypothetical: Suppose, that the issue in a lawsuit is whether the Government took adequate safety precautions in connection with the nuclear test at Amchitka in 1971. James Schlesinger, then Chairman of the Atomic Energy Commission, "told reporters at Elmendorf Air Force Base outside Anchorage that he was taking his wife...and daughters... with him to the site of the Amchitka blast. Suppose Schlesinger in fact traveled to Amchitka with his family. Would testimony of an observer describing Schlesinger's trip be hearsay if offered to show Schlesinger's expert opinion that the blast site was safe? Is this problem different from the last one?

Hearsay—the statement was the site was safe and the person was trying to communicate that

Recall the Δ's testimony in United States v. James, a homicide case in which the Δ pled self-defense: The Δ, Ernestine James, testified that the victim, David Ogden, had boasted to her about once killing a man and getting away with it. He told her he had sold another man a fake watch, and when the man complained, had stabbed him in the neck with a ball point pen. Ogden told James that it was pretty funny watching a guy with a pen dangling out of his neck. He also bragged that he had once ripped a side view mirror off the car and beat a man unconscious with it, and that, in yet another incident, he had robbed an old man by holding him down with a knife in his face and threatening to cut his eyes out. If the prosecutor had objected to this testimony as hearsay, should the trial judge nonetheless have permitted it?

NOT hearsay—effect on the listener

1. Would evidence of the "conduct of a deceased captain on a question of the seaworthiness" of a particular vessel be hearsay if the captain, "after examining every part of the vessel, embarked in it with his family"? That is suppose a ship sank and everyone on board, including the captain, perished. Assume too that the ship's owner filed a claim against the insurer but that the insurer refused payment, alleging that the ship was unseaworthy and never should have left port. The owner sued for payment and at trial wishes to offer evidence that he ship was indeed seaworthy. If the ship's captain had lived, he could have testified as an expert witness that he believed the ship seaworthy. Instead the Π calls as a witness a dockworker who watched the captain's actions immediately before leaving port. The dockworker is prepared to testify that after the captain made a careful inspection of the ship, he escorted his family on board and set sail. If the Π offers the dockworker's testimony as evidence that the captain believed the ship seaworthy, is the evidence hearsay?

NOT hearsay—no communicative intent

After his arrest on a charge of driving under the influence of alcohol or drugs, Washington agreed to give a blood sample for testing. A nurse drew a vial of his blood, which the arresting officer sent for analysis to the Armed Forces Institute of Pathology. Using a gas chromatograph and computers with ChemStation software, lab technicians subjected the blood to various tests. The machine generated a printout stating that the "sample of blood obtained from Washington at 1:23 a.m. on Jan 3, 2004, contained 27mg/dL of ethanol and tested positive for PCP. At trial the prosecutor offered this printout as an exhibit to prove the levels of alcohol and PCP in Washington's blood at 1:23 a.m. on January 3, 2004. Is the printout hearsay?

NOT hearsay—not a human with communicative intent—the thing that generated the "written assertion" was a computer, not a person.

In State v. Getz, Vicky Getz was charged with felony theft after selling two horses that belonged to William and Shirley Griffing. Testifying in her defense, Getz claimed she believed the horses belonged to Perry Patton, who had been living with her for about a month. According to the Kansas Supreme Court, "Getz sought permission from the trial judge to testify that Patton told her he has purchased the two paint horses and that he asked her help in selling the horses." Was the trial court correct in ruling that Getz's proposed testimony was hearsay?

NOT hearsay—not offered for the truth of the matter asserted—it really doesn't matter here whether or not what Patton said was true or not. This is more of an effect on the listener case.

Consider the facts of United States v. White. On September 15,1999, Δ White and traveling companion, Tony Friese, arrived at the Cincinnati-Northern Kentucky Airport after 2 weeks of travel throughout Europe. At the immigration booth, White and Friese provided declaration forms to United States Customs Officer Mary Fennell. White's form declared that he had acquired abroad beer, wine, and chocolate-totaling $102.00 White denied having acquired other items abroad. Inspector David Smith searched White's bags and found 45 high-capacity firearm magazines and a rifle stock. At trial, Inspector Smith estimated the value of the firearm magazines to be in excess of $2000. A federal grand jury subsequently returned a two-count indictment against Δ White, alleging one-count of making a false and fraudulent customs declaration. During the trial, White attempted to have Friese testify that White had, at one point during the customs inspection, stated that "I Δ White have some more items to declare." The Government objected to this testimony as classic hearsay." (1) Assume the government offered evidence that White bought the firearm magazines while in Europe. Was the officer's testimony that White denied having acquired other items abroad, hearsay if offered by the government to prove White lied to the officers" (2) How should the trial court have ruled on the government's hearsay objection to Friese's proposed testimony?

NOT hearsay—the statement is being offered to prove that he didn't lie, NOT that he had other items to declare

Timeline that you have to introduce evidence?

No timeline

Offer of proof - seek to put on evidence which judge doesn't allow (either doesn't let witness take the stand or doesn't allow them to answer the question). You must preserve for appeal - to do so, must show answer is good - can only determine if harmless error if we know the answer. Ask judge for offer of proof - attorney ells judge what witness would say. If judge says no, can file a motion to include info in the court record. File it that night and it will be in the record for appeal purposes.

Not character evidence at all - didn't offer trait. Said Δ on drug and this is what that drug does - not evidence of character of Δ, but direct testimony (trait of drug). Still have to do 403 analysis.

Photo of Guns: Dale Lee Hitt was convicted of possessing an unregistered machine gun in violation of 26 USC 5861(d). The government alleged he had altered a semiautomatic rifle so it would discharge more than one shot per trigger pull. The key question was whether the rifle would in fact rapid-fire. The government and Hitt each had their own experts test fire it. The government's test found that the rifle fire more than one shot per trigger pull. Hitt's expert found that it did not. Hitt's expert suggested that perhaps the gun was dirty, worn or defective when the government's expert shot it. The government introduced a photo into evidence to show that the rifle was not dirty, worn, or defective. The photo showed nothing of the gun's interior. All the jury could see was the outside, and not very well. The gun occupied only a small part of the 4X6 photo. The rest was taken up by about a dozen other weapons-9 other guns, including 3 that looked like assault rifles, and several knives-all belonging to Hitt's housemate. Was the photo relevant? Should the trial court have admitted over Hitt's objection?

Photo was unfairly prejudicial b/c it showed the gun in question along with several other guns that did not even belong to the D. It could make it look like he was a "gun guy." The prejudice is weighed against the probative value. The photo did not show the inside of the gun, therefore it could not show whether the there was a malfunction. And was not probative. "substantially unfairly prejudicial vs probativeness" is the test.

What route around the propensity box for character evidence involves: i. Defendant is offering proof about another 3rd party that is not in this current case—to prove that that person is the true committer of the act because he has committed similar acts and this current act is one in that "plan" or series of ongoing incidents ii. Argument—what happened is a part of another person's larger grand scheme - not that their a bad guy here a bad guy, just there a bad guy and still being a bad guy because same plan b. R: defendant can use evidence of other crimes defensively if it tends to ______________ of the crime charged c. 403 test—there would be no prejudice against the defendant here so the only balancing test would be between the ____________________________ d. Bottom line—this other person is guilty, not me, because of all these similarities between the offense that he committed there and the one I have been charged with here

Plan-Reverse 404(b) b. R: negate his guilt c. probativeness and the waste of time

Compromise Offers & Payment of Medical Expenses R: Rule 408-Neither party can offer up evidence to impeach or prove a claim with proof of a (1)_________________ OR (2) statements made during ___________. Note—must be about a disputed claim - does not cover offers made ___________ a claim exists Permissible Uses by Rule— (1) witness ________ (2) witness ___________ (3) negating contention of ______________ (4) proving an effort to obstruct a _____________ Plea discussions and arrangements in criminal cases are NOT covered by this rule EXCEPT—when person makes a claim in a civil negotiation is cannot be used against them as a defendant in a criminal case - unless _________________. Compromises with Third Parties Trending towards ____________ compromises with 3rd parties—but still subject to 403 409—Medical Expenses No offer to pay medical expenses can get in regardless of ____________________________ was made to prove liability

R: (1) settlement promise, offer, acceptance, compromise, or attempt to compromise OR (2) settlement negotiations Note— BEFORE Permissible Uses by Rule— (1) bias a. If the witness was brought in that had lost a settlement agreement with the defendant, that settlement could have been brought in to prove that she was bias against the defendant (2) prejudice (3) undue delay (4) criminal prosecution EXCEPT— unless government agents are present barring 409 time that the statement was made a. Ex. Run stoplight and hit someone and jump out and say omg im so sorry that is my fault I ran the red light and I will pay your medical expenses—you keep out medical expenses but the admission comes in

Probability Evidence R: mathematical odds are not admissible as evidence to identify a defendant in a criminal proceeding so long as the odds are based on ______________, the validity of which have not been demonstrated. R: allowing in mathematical probability evidence turns on: (1) the __________ of the math, (2) the _____________ of the underlying facts, (3) and the ability of jurors to assess ______________. NOTE: DNA tests are probability determinations but they are relied on all the time

R: estimates (1) soundness (2) accuracy (3) defects beyond the math

Character Evidence Routes Around Propensity Narrative Integrity R: a prior act that is so _________________ with the charged offense, it can be admitted a. R: __________________ —the prior act is necessary in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime b. You don't want to say there a bad guy here a bad guy there, you are saying, I can't tell my story because it would make no sense unless I tell you about the bad thing that he did 2. All about telling the story—R: can the story be fairly told without reference to ____________________

R: inextricably intertwined b. You don't want to say there a bad guy here a bad guy there, you are saying, I can't tell my story because it would make no sense unless I tell you about the bad thing that he did the prior bad act in question

Liability Insurance R: Can't come in for proving _________________. R: Can come in for anything else—including: 1. (1) bias 2. (2) prejudice 3. (3) proving agency 4. (4) proving ownership 5. (5) proving control Subject to ________ even if it gets in

R: negligence or wrongdoing 403

Hearsay Steps to Hearsay: b. R: Must be an assertion with the intent to _______________ 1. R: an (1) oral assertion, (2) written assertion, or (3) nonverbal conduct that was _______________________ 2. R: Must be made by a ____________ with communicative intent a. Something _________ doesn't work

R: to communicate R: intended as an assertion R: human innate Ex. Writing in a diary is not communicative intent

Photos and Other inflammatory Evidence R: Relevant photographs may be received in evidence even though they have a tendency to prejudice the jury (remember that's the point)—the admittance turns on ...? 1. Note: the main reason we exclude evidence because of 403 is because the evidence invokes some type of emotion ii. R: Some type of visual representation (demonstrative evidence) (i.e. computer simulation) should be admissible if: ??? iv. ____________ Evidence- evidence that is used to visualize testimony. Only __________ go back with the jury.

R: whether the photo is of the nature to incite passion or inflame the jury in a way that unfairly prejudices the jury to substantially outweigh the relevance. (1) it is fair and accurate representation of the evidence (2) it is relevant (3) it has probative value that is not outweighed by the danger of unfair prejudice iv. Demonstrative Evidence exhibits

_________________ evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

Relevant

Character Evidence Routes Around Propensity Proof of Knowledge R—offering evidence of prior act to prove that the defendant _________________________ 2. Remember—the closer the two crimes, the more likely it is ________________ - so prejudice chance high in knowledge cases

R—knows how to do what was done here Remember— unfairly prejudicial

A _______________ is a "fix." After something happens, the "thing" that caused the injury is fixed. This is designed to encourage those "fixes" by preventing evidence of the fix from being admitted into evidence to prove the various things listed in the rule.

Subsequent Remedial Measures

In the course of a murder investigation, a police detective interviewed Angela Raymond, who said she saw Margaret Davis fire the fatal shot. At Davis's trial, the prosecutor calls Raymond as a witness. She testifies that she was nowhere near the crime scene and has no idea who shot the deceased. When questioned by the prosecutor about her previous statement to the police, Raymond denies ever having made it. The prosecutor then calls the police detective to the stand. The detective testifies that Raymond told him in an interview at her home that she saw Davis shoot the victim. If the prosecutor now rests without producing any other evidence of the shooter's identity, and if the Δ moves for a directed verdict of acquittal, how should the judge rule? (Assume the judge must grant the motion if no reasonable juror could find the Δ guilty beyond a reasonable doubt.)

This can be used for impeachment, she is saying something inconsistent with what she said in the past and what she is saying on the stand is simply more than I don't remember - if during the interview she was under oath, could come in substantively too

Character Evidence Routes Around Propensity Doctrine of Chances (not worth spending a lot of time on) The claim is—what are the odds of this very rare thing happening to a person You let in the evidence to say, well it's not an accident, it's all a part of this guy's plan The argument—if this was a 1/1000 chance the first time and a 1/1000 chance the second time, that is a 1/1000000 chance this time and so it's probably a _____________. 2. Note this will be a situation where there are things going on around the defendant that he is ________ to 3. Bathtub case- Now that you're second wife has died in the bathtub, we don't think you're second wife died in the bathtub (not supposed to do this reasoning but pretty much what it is).

a pattern not an accident 2. "hands off"

Assume the same facts as in the previous problem, with this exception: When F.T. took the stand at Robinson's trial, she did not claim she had been injured accidentally when Robinson pushed open the bathroom door. Rather she said she no longer remembers how she fractured her eye orbit because the injury damaged her memory. If the prosecutor, over the Δ's hearsay objection, offered a transcript of F.T.'s grand jury testimony, how should the court have ruled? Again, assume that the Federal Rules of Evidence control the case.

a. This is a different statement, but not inconsistent for impeachment b. IF the person is not lying, that is not inconsistent—if the person IS lying, that is different i. Judge makes this determination c. As far as 803(5) - it doesn't normally apply to a transcript of a person's statement, it generally applies to a person's statement like a police report or something i. 803(5) is set up for a situation like a police report d. 804 unavailability has the potential of working here—but doesn't because she was not subject to cross exam at the grand jury hearing that she initially said the words at

Bias is ____________ relevant

always

Character Evidence Routes Around Propensity MO—Modus Operandi—Proof of Identity The claim is—signature crimes, brutal & ritualistic murders and the defendant has been charged with his ritualistic murder b. The inference that you are trying to have the jury make—not once a ritualistic murderer, here a ritualistic murder—but this crime _________________. c. R: the similarity between the two crimes must be ______________ that the inference that nobody else could have committed this crime overcomes the jury's temptation to engage in propensity reasoning ii. R: an exact match is not necessary—the test is a _____________________________ on the conjunction of several identifying characteristics or the presence of some highly distinctive quality i.e. Quincy bomb

b. could not have been done by anyone else c. R: so distinctive ii. R: totality of the comparison documents

evidence which requires an inference to resolve the issue

circumstantial evidence

Evidence must be material: It is material if it bears on a fact that is of __________________________________. Whether evidence is material turns on ___________________________ -which often turns on the substantive law of the jurisdiction. To decide whether an issue is material, look to the substantive law. Ex. A victims lost earning potential is not material to a murder trial, but it may be material to a civil suit for wrongful death Ex. An owners negligence in leashing a dog—material to negligence claim but not to a strict liability claim

consequence to the determination of the action. what issues are at stake in the proceeding

Huddleston Standard If the past act is offered as a route AROUND propensity- and there is no previous conviction or anything—you have to prove the past act happened under 404(b) - meaning without looking to ___________________, the court will examine all the evidence and determine by a preponderance of the evidence whether the jury could reasonably find the past act occurred a. Does a preponderance of the evidence prove the __________ happened b. Is the jury more likely than not going to believe that this happened 2. If someone wants to introduce a prior bad act, how do we know if the prior bad act actually occurred? In analyzing Huddleston, the prior bad acts are not _______________ so we want to introduce the fact to show that he wouldn't have cleaned the gun in the same way because he would have learned from his mistake. But then he tells the police she didn't die that way and then the prosecutor has to prove she died that way.

credibility of the evidence past act 2. convictions

evidence which does not require an inference to answer the issue in question?

direct evidence

a. Barone was charged with November 5, 1982, robbery of credit union teller Lucy LoPriore of a bag of cash belonging to the credit union as she and security guard Kenneth McPhee walked from the First National Bank on Hanover Street to the credit union at the corner of Parmenter and Salem Streets in Boston's North End. According to witnesses, the robbery occurred between 10:00 and 10:30 a.m. and was perpetrated by two masked men. In the course of the robbery, McPhee was shot in the calf and in the neck...DiNunzio testified that, on the morning of the credit union robbery, her brother, Limoli, who was murdered before trial, came to her house carrying a box and asked for lemon juice, saying that if you wash your hands with lemon juice, "they can't tell that you shot a gun." According to DiNunzio, after the robbery was reported on the noontime news, Limoli admitted to her that he and Barone had committed the robbery; that he had shot security tell that you shot a gun." According to DiNunzio, after the robbery was reported on the noontime news, Limoli admitted to her that he and Barone had committed the robbery; that he had shot security guard McPhee in the foot; and that Barone had shot McPhee in the neck. Should the trial court have admitted DiNunzio's testimony over Barone's hearsay objection?

i. The statements against Baron will not get in as statement's against a parties interest -Can't be a coconspirator statement because conspiracy is over with Limoli being dead

Impeachment & Character For Truthfulness 608(a)—reputation and opinion i. ANY witness on the stand ii. The door opens—when evidence of an opinion or reputation for untruthfulness -> this triggers allowing in evidence of opinion or reputation of _____________. iii. Must lay a foundation—meaning on what is your opinion based and how do you come to the conclusion on their reputation 1. Reputation—a party must establish that the character witness is qualified by having a _________________. 2. ______________—less stringent than reputation but must be more than a conclusory observation What is An Attack: (1) opinion or reputation testimony of the witness's _________ character for truthfulness (2) ____________ of specific acts that are probative of untruthfulness (3) ? vi. ____________ is NEVER an attack on truthfulness vii. Evidence that contradicts testimony _____________ an attack - depends on circumstances

ii. truthfulness 1. Reputation— an acquaintance with the witness, his community, and his circles 2. Opinion (1) bad (2) cross evidence (3) past convictions vi. Bias vii. MAY be

Character Evidence Routes Around Propensity Absence of Accident NOTE—very similar to doctrine of chances The claim—the defendant screwed up and made a mistake one time, and so he should have learned from that mistake so that the fact that he did the same mistake again ________________ - should have learned the first time b. The hole—you may just be ___________ 3. The persons hands are involved v. doctrine of chances when the persons hands are NOT involved, there are just all these things going on around the person. 4. If you assert an accident the first time, you're claim of accident is undermine the first accident. You wouldn't be so stupid to have the same accident twice.

is not accident b. stupid

Rule 409 governs the admissibility of offers to pay _________________ expenses When is it admissible?

medical and similar expenses when it is offered to prove something other than "liability for the injury."

Lack of knowledge is not relevant if there is no __________ specified in the law.

mens rea

Probativeness: Evidence must have a tendency to make the existence of a material fact _________________ than it would be w/o the evidence. To be probative, evidence need not prove anything conclusively, it must merely have ___________________. *contributes just one brick to the wall

more or less probable some tendency to make a fact more or less probable.

The Character—Propensity Rule 404(a)(1)—Evidence of a person's character or character trait is not admissible to prove that ......? Character—the type of person someone is Honest, generous, selfish, friendly, nasty, careless, cautious etc. 404(b)(1) - same as general rule—can't use _________________ to prove a person's character and that the person acted in accordance with that character NOTE—Criminal and civil cases Only want to stop the jury from engaging in propensity—______________ can engage in it

on a particular occasion the person acted in accordance with the character trait -once a bad guy, here a bad guy; once a murderer, here a murderer, etc. 404(b)(1)crimes, wrongdoing, or other acts others

Character Evidence Routes Around Propensity Evidence of Habit Evidence of Habit is a way around the propensity box because you are saying that someone _____________ is going to do this thing 3. The difference between habit and propensity—habit is more ...? 4. R: _____________ is key—the behavior is such a repetitive pattern of conduct that may vary from time to time, but is nonetheless predictive a. The things that a person does invariably and almost without volition b. The more frequent the conduct, the more likely it is ________

predictably 3. narrow, more routine, and more benign 4. R: predictive b. habit 5. Things not habit: a. Violence b. Drinking

Conditional Relevance - 104(b) -104(a) is a legal determination about the admissibility of evidence while 104b is a determination that will be left up to the jury so that the judge lets in the evidence if a reasonable jury could believe the thing R 104 (b)—when the relevance of evidence depends on whether a __________________ proof must be introduced sufficient to support a finding that the previous (antecedent) fact does exist. The court may let in the proposed evidence on the condition that _______________________. c. When court makes these decisions they are NOT bound by the ___________________ when determining if evidence is admissible, privileged, or a witness is qualified e. The Judges Job—once the objection is made the judge has to decide if _______________ can find that antecedent fact has been established ii. Standard of Proof—?

previous (antecedent) fact exists this antecedent fact will be introduced later. c. rules of evidence e. a reasonable jury i. Essentially the judge has to decide if the jury has enough information to make that "leap" the that final conclusion ii. Standard of Proof—the judge decides if the jury can make this leap by a preponderance of the evidence given the standard of proof (i.e. beyond a reasonable doubt) of that particular charge

Effects of Stipulations Stipulation is a tool used to decrease the ______________ of the evidence This tool is a middle ground approach to allowing certain information in under the stipulation that certain parts and pieces be left out—essentially both sides should get what they want _________________ is taken out and the probabitveness is increased

probativeness Unfair Prejudice

A piece of evidence must be _________ to be admissible.

relevant

evidence derived from the lips of a witness

testimonial evidence

Pleas in Criminal Cases R: in civil and criminal cases the following is not admissible against the defendant who made a deal or engaged in plea negotiations: Note—the _______________ can bring in the evidence—it just can't be brought in against him - this is when one of the exceptions would apply so that the prosecutor could get in a statement that must be paired NOTE—the defendant can open the door -> prosecution can start bringing in stuff too (1) a guilty plea that was later withdrawn (2) nolo contended plea (3) statements made during the proceedings for these things (4) statements made in negotiations and conversations about these please Exceptions 1. ____________ trial 2. If another statement from those plea deals has been let in and the fairness of the statement requires that ____________________________.

the defendant 1. (1) a guilty plea that was later withdrawn 2. (2) nolo contended plea 3. (3) statements made during the proceedings for these things 4. (4) statements made in negotiations and conversations about these please Exceptions 1. Perjury trial 2. both of the statements be considered together.