Evidence
Confrontation Clause of 6th Amendment
"In all criminal prosecutions, the accused shall enjoy the right to... be confronted with the witnesses against him."
803(5)
(5) Recorded Recollection A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge.
Rule 103(d)
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
Rule 801(d)(2)(C)
Authorized Admission (d) Statements that are Not Hearsay (2) An Opposing Party's Statement: The statement is offered against an opposing party and: (C) was made by a person whom the party authorized to make a statement on the subject
Rule 403.
Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Rule 802.
The Rule Against Hearsay Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court.
4 Problems with OOC Declarations
a. Misperception b. Memory c. Narration d. Distortion (lie)
803(6)
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by — or from information transmitted by — someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
803(7)
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in 803(6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; AND (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
Rule 404(a)
(a) Character Evidence. (1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant's same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.
Rule 101. Scope; Definitions
(a) Scope. These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101. (b) Definitions. In these rules (1) "civil case" means a civil action or proceeding; (2) "criminal case" includes a criminal proceeding; (3) "public office" includes a public agency; (4) "record" includes a memorandum, report, or data compilation; (5) a "rule prescribed by the Supreme Court" means a rule adopted by the Supreme Court under statutory authority; and (6) a reference to any kind of written material or any other medium includes electronically stored information.
404(b)
(b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
Rule 103(c)
(c) Court's Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
801(d)(1)
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarant's testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or (C) identifies a person as someone the declarant perceived earlier.
Rule 103(e)
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
Conf. Clause Requirements
- Only in criminal not civil proceedings - Grants right of confrontation only to "the accused" - Right is satisfied of the accused is "confronted" - witness making hearsay declaration later available for x exam in open court or available before trial for x exam - Must be testimonial in nature to be excluded (Crawford) - Must not be an ongoing emergency (Bryant duress/reliability reasoning) - If not offered for its truth, not barred (blending with hearsay)
Rule 103(b)
103(b): Not needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
Beech Aircraft Corp. v. Rainey (Brennan 1988)
106 Completeness of a writing. i. Navy training aircraft crashed. At trial, P called as adverse witness by the other side; asked about 2 statements favorable to D and P admitted having made them (801(d)(2)(A) admission). P's counsel asked on cross exam whether in the same letter, P had said D caused the accident. Court cut off the question because P made the statement himself and admissions can't be brought in in favor of same party (Phelps). ii. Error: under 106 the rest of the contents of the letter can be brought in to give complete picture of what was said to jury.
803(4)
4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Salvitti v. Throppe (PA 1942)
801(d)(2)(A) direct admissions case Salvitti injured when swerved to avoid N-driven truck. Boss of truck company came to hospital, said it was their fault and everything would be taken care of. Held: ev admiss even though boss didn't have firsthand knowledge. This is because 801(d)(2) is rooted in the fairness of the adversarial system and not in reliability. Wigmore: because parties can file averment based not on personal knowledge, should be able to bring in prior admissions not based on personal knowledge.
Hanson v. Waller (11th Cir. 1989)
801(d)(2)(C) Authorized Admission i. Pros sought to intro ev D's former attorney's letter to his current attorney. ii. Held: admissible under 801(d)(2)(C) because attorney was authorized to make admissions directly related to the litigation.
Rule 803(3): Then-Existing Mental, Emotional, or Physical Condition
803(3): Then-Existing Mental, Emotional, or Physical condition A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
803(1): Present Sense Impressions
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
803(2): Excited Utterance
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
The Bruton Rule
A. When 2+ defendants are tried together, a prior statement by one will be admissible as an admission, but it can't be introduced against the other defendants without violating both hearsay and Confrontation Clause. a. SCOTUS held that limiting instructions are not enough when the statement is incriminating against a codefendant. b. Bruton and corporations: If a coconspirator statement implicates a corporation wholly owned by A but not A himself, Bruton still applies.
801(d)(2)(E) - admission made by the coconspirator during and in furtherance of the conspiracy
Admission made by the coconspirator during and in furtherance of the conspiracy. Need not charge conspiracy to have coconspirator admission. statements after conspiracy has 1) failed or 2) been achieved are BARRED.
Rule 801(d)(2)(B)
Adoptive Admission (d) Statements that are Not Hearsay (2) An Opposing Party's Statement: The statement is offered against an opposing party and: (B) is one the party manifested that it adopted or believed to be true
United States v. Parry (5th Cir. 1981)
Agents calling D's mother's house to buy drugs. Parry told his mother that they were agents. Admissible as nonhearsay because circumstantial evidence tended to show he believed they were agents.
Lyons Partnership v. Morris Costumes, Inc. (2001) - 801/802
Barney case. Kids' statements not offered for truth; merely belief.
Gray v. Maryland (Breyer 1998)
Bruton rule and redactions. a. 3 men allegedly participated in beating where girl died (Gray and Bell). Bell in police custody confessed that he and Bell beat her. Gray and Bell tried together. Confession intro'd into ev with a redaction that said "deleted" every time Gray's name mentioned. Obvious inference that Gray was being referred to. b. Held: this is like pointing. Requires Conf clause protection. Inadmiss. Redaction may also overemphasize the importance of the confession's accusation.
Sea Captain Example
Captain explores and inspects boat then takes family out on it. At common law, this would be barred as ev that vessel was seaworthy. Allowed by FRE because captain did not intend to assert that vessel was seaworthy.
Rule 801(d)(2)(A)
Classic Admission (d) Statements that are Not Hearsay (2) An Opposing Party's Statement: The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity
US v. Owens (Scalia 1988)
Corrections officer beaten at prison suffered memory loss. a. Identification admissible under 801(d)(1)(C) because it's a prior identification and he's available at trial to testify. Memory loss is a common feature of cross examination. What matters is the opportunity to cross examine, not the perfect cross examination.
804(a)
Criteria for being unavailable: 1) privilege 2) refusal 3) testifies to not remembering 4)cannot be present because of illness/death 5) proponent has not been able to procure by reasonable means A) declarant's attendance under hearsay exception from 804(b)(1) or (6) or B) declarant's attendance or TESTIMONY in case of hearsay exception under 804(b)(2), (3), (4)
Trial of Sir Walter Raleigh - 801 (a) - (c)
Dyer (witness) who spoke of "portugese man" who said Raleigh intended to kill the king. Ct. admitted this testimony. Today, paradigmatic example of hearsay.
Rule 801(d)(2)(D)
Employee Admission (d) Statements that are Not Hearsay (2) An Opposing Party's Statement: The statement is offered against an opposing party and: (D) was made by the party's agent r employee on a matter within the scope of that relationship and while it existed
401
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
Bootstrapping Rule
Evidence of conspiracy should not "pull itself up by its own bootstraps" to 1) show conspiracy existed and 2) be let in because conspiracy existed. Overrule through language of 104, bu 1997 update to 801(d)(2)(E) codifies Bourjaily holding but requires court to also look at aliunde evidence - cannot rely solely on hearsay to find a conspiracy existed.
Rule 803
Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness
FRE 804
Exceptions to the Rule against Hearsay - When the Declarant is unavailable as a Witness
804(b)
Exceptions: what is not excluded by rule against hearsay if declarant is unavailable as a witness. (This is allowed in)
803(2)
Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
804(b)(1)
Former Testimony
805: Hearsay within Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combine statements conforms with an exception to the rule. **If first level is hearsay, second, non-hearsay level inadmissible.
805
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
Leake v. Hagert (ND 1970) - 801(a) - (c)
I. Leake v. Hagert (ND 1970) a. Hagert drove car into plow and tractor driven by Leake. Both claimed N of other. Leake appealed because Ct. allowed testimony by Gross saying the Leake's son told Gross that the red lens on the tractor had been out for some time. b. Held: hearsay erroneously admitted.
106: Remainder of or Related Writing or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an advese party may require the inttro, at that time, of any other part or any other writing or recroed statement that in fairness ought to be considered at the same time. **idea is to flesh out completeness of the segment of writing.
801(d)(2)(D)
If agent was 1) employed at the time of the admission, and 2) the subject matter of the statement was within scope of employment, admissible as an agent admission. A. ACN a. Narrow Test of 801(d)(2)(D): was the admission made by the agent acting within the scope of his employment? b. Growing trend: admit statements related to matter within the scope of agency or employment. B. Gov Agent admissions: admissible under hearsay rules but at common law, the sovereign was not responsible for the admissions of its agents. Courts are divided.
Rule 105.
Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
Albert v. McKay (CA 1917)
Lumber mill case - did it turn on before or after Albert started working? Held: evidence of prior inconsistent statement can only undermine a witness's in-court statement; it cannot be probative independent evidence.
US v. Noriega (11th Cir. 1997)
Narcotics case. Noriega wanted to introduce into evidence the work he did for the US government to explain the $10m b. Holding: Allowing into evidence what he did would have been unfairly prejudicial in that it distracted from the issues: would have diverted attention to global intrigue not narcotics charge. c. Note: D lost the probative val. of his ev.
US v. McGee (7th Cir. 1999)
Not necessary for a statement to be inculpatory to be admiss under 801(d)(2)(A). Need only be made by party against whom it's offered to fit the rule. Detective testified that he interviewed McGee and McGee provided 3 different versions of the events.
Rule 104(a)
Preliminary Questions In General The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. **Inquiry is whether the judge believes qualified/privileged/admissible.
Standard of Proof for 104(b) condition
Preponderance: judge has to decide that a reasonable jury could find by a preponderance that the initial condition is met.
803(1)
Present Sense Impression A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
I. Ohio v. Clark (Alito 2015) - Conf Clause
Primary purpose test a. Child abuse case. Ev of son's statement to teachers that the father was the one who inflicted his wounds. Ohio ev rules allow hearsay ev of child abuse victims. D claimed barred by 6th Am because the child can't testify in court. b. Primary purpose of this child's statements aren't testimonial under Crawford and are part of resolving an ongoing emergency under Bryant, therefore they're constitutionally admissible.
Theoretical underpinning of Rule 803
RELIABILITY (unlike 801(d) - fairness of the adversarial system.
Rule 104(b)
Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. **Standard is whether reasonable jury could find the fact exists.
402
Relevant evidence is admissable unless precluded by: Constitution/fed statute/these rules/other rules prescribed by SCOTUS. Irrelevant evidence is not admissible.
Rule 103(a)
Rule 103. Rulings on Evidence (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
106
Rule 106. Remainder of or Related Writings or Recorded Statements If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.
Rule 405
Rule 405. Methods of Proving Character (a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct. (b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.
Rule 406
Rule 406. Habit; Routine Practice Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
Rule 412
Rule 412. Sex-Offense Cases: The Victim's Sexual Behavior or Predisposition (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition. (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant's constitutional rights. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy. (c) Procedure To Determine Admissibility. (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must: (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the victim or, when appropriate, the victim's guardian or representative. (2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed. (d) Definition of "Victim." In this rule, "victim" includes an alleged victim.
612
Rule 612. Writing Used to Refresh a Witness's Memory (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Party's Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or — if justice so requires — declare a mistrial.
803(3)
Rule 803(3): Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
The Hillmon Doctrine
SCOTUS has extended the 803(3) state of mind exception to statements of intent offered to prove declarants actually did what they said they intended to do. a. Extends Rule 803(3) to allow a statement of a declarant to prove the state of mind of another person entirely; but usually requires corroboration. Must involve statement involving the conduct of 2 people. Hillmon doctrine/803(3) does not extend to statement by X that "Y was planning to go out." to show that Y was planning to go out.
Crawford v. Washington (Scalia 2004) - conf cl
Stabbing where wife may have pulled knife out first. Marital privilege so wife can't testify about statements to police. Testimonial evidence is barred by the Confrontation Clause. See: the drafters consideration of Raleigh
804(b)(3)
Statement Against Interest
804(b)(6)
Statement Offered Against a Party that Wrongfully Caused the Declarant's Unavailability
804(b)(2)
Statement Under the Belief of Imminent Death
804(b)(4)
Statement of Personal or Family History
CA v. Greene
Statements at a prelim hearing admissible under Conf Clause because PH provided opportunity to x examine.
801(d)(2)
Statements offered against an opposing party A - direct admission B - adoptive admission C - authorized admission D - agent/employee admission E - coconspirator admission
IUS v. Mehanna (1st Cir. 2003) - 403
Terrorism case. Admissible under 403 - emotional but deferential to TC.
Rule 102. Purpose
These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
801(a) - (c) definition of hearsay cases
Trial of Sir Walter Raleigh Leake v. Hagert
803(1) Test (104(a))
a. 1) Is content DESCRIBING the event? b. 2) Was it said contemporaneously with the event?
A. 803(2) Test (104(a))
a. 1) Is content RELATED TO the event? b. 2) Was person under stress of startling event/condition? c. 3) Was the stress caused by the startling event/condition?
U.S. v. Zenni (1980) - 801(a) definition of statement (implied assertion)
a. Betting case. While gov searched house, agents picked up phone calls directing bets to be made at the house. Calls were admissible as nonassertive verbal conduct because they were requests and introduced to show that the house was a betting establishment.
I. Michigan v. Bryant (Sotomayor 2011) - conf clause
a. Covington shot; police find him lying on the ground next to his car and questioned him about the shooting. b. This was an ongoing emergency and therefore nontestimonial and admissible.
Subramanian v. Public Prosecutor (1956)
a. D found guilty of possession of 20 rounds of ammo. Sought to intro statement of terrorists told him that he was going to kill him as evidence that he was under duress. b. Admissible - trying to prove duress due to belief of intent to kill, not that they actually intended to kill him.
US v. Obayagbona (EDNY 1985)
a. Drug sting. Agent Turner negotiated purchase of drugs; O who wore black and white dress took a sample out of her purse and handed it to him. Turner wearing a wire and 15 mins after arrest he said "the one in the b&w gave it to me." (Contrary to D's account). b. Held admissible under 803(1) present sense and 803(2) excited utterance. Near contemporaneity satisfies 803(1) and it was a pent-up exclamation under 803(2).
US v. Elem (8th Cir. 1988)
a. Excitement and spontaneity supply indicia of trustworthiness. Exclamations generally aren't lies. b. Elem convicted of possession of a firearm by convicted felon. In response to a police question about whether the gun was his, answered "No" and in response to a police inquiry about the flourishing of a weapon, appellant answered, "You won't be able to make that." These utterances were not allowed in because there's nothing in the record to support the contention that he was unduly excited. c. Note: heavier scrutiny for parties trying to get own statements in.
Bourjaily v. US (Rehnquist 1987)
a. FBI sting to work with Lonardo and petitioner to sell drugs. Gov sought to intro ev of phone conversation by Lonardo regarding petitioner's involvement to show petitioner's involvement. b. At issue: 1) whether court must determine by independent aliunde ev that conspiracy existed; 2) upon what quantum of proof, 3) must court examine circumstances of co-conspirator statements to determine liability? c. Held: the court may examine hearsay statements to determine if the conspiracy existed; no need to rely soley on aliunde ev i. Rejects bootstrapping rule: BR = evidence of conspiracy should not "pull itself up by its own bootstraps" to 1) show conspiracy and 2) be let in. ii. Cong overruled bootstrapping rule through lang of 104: TC may rely on any ev available including hearsay except what's privileged to make preliminary determinations. d. Note: 1997 update to 801 codifies holding in Bourjaily BUT requires court to also look at aliunde ev. Cannot rely soley on hearsay to find existence of conspiracy.
Old Chief v. USA (SCOTUS 1997, Souter)
a. Facts: 3 counts: assault, use of a gun, felon in possession. Prosecution wants to intro ev. Of Old Chief's prior crime by revealing what the crime was (assault) to show that he was a felon in possession. Old Chief offers to stipulate that he was a felon - concede this point to avoid ev. Of his prior assault. b. Holding: Relevant under 401 but unduly prejudicial under 403. i. 403 probative val. may be calculated by comparing evidentiary alternatives. ii. Juror expectations should be satisfied wrt proof so they don't draw adverse inferences but that didn't happen here. c. O'Connor dissent: should have instructed jury under 105. Congress made the prior crime part of the definition. Established principle that gov can't be forced to accept D's admission of the element as proof of the element.
Abernathy v. Superior Hardwoods (7th Cir. 1983, Posner)
a. Facts: Log unloading case. Suing for negligence because log fell on his back. Superior Hardwoods wanted to intro homemade tape designed to show Abernathy should have heard the loading begin. b. Holding: This would mislead jury because the video was homemade and no ev that the volume was at the appropriate level or the mic was where P was standing. Normally allow parties to manage cases but there is a role for the TC judge. Posner says parties should not be allowed to "serve up a muddle."
US v. McRae (5th Cir. 1979)
a. Facts: McRae killed wife by shooting her point blank. Defense was that it was accidental. Objected to graphic photos of the death intro'd into ev. To show position of shooting. b. Holding: Not unfairly prejudicial under 403 - prejudice doesn't substantially outweigh probative val.
Bruton v. US (Brennan 1968)
a. Jury was instructed that a codefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence. Because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilty, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause. b. Dissent: we instruct juries all the time. Why limit here?
State v. McNeely (OR 2000) - 104(b)
a. McNeely was convicted of aggravated murder, evidence from fellow inmate Thompson about statements McNeely had made, but Thompson did not identify McNeely in court. Court admitted evidence, because a reasonable juror could find that McNeely was the person with whom Thompson had spoken with in jail.
Sea-Land Service Inc v. Lozen International LLC (2002) (801(d)(2)(D) and 805)
a. Sea-Land sued Lozen for money owed under a shipping K. Lozen appealed because TC excluded internal company email by Sea-Land employee, sent to second employee, forwarded to Lozen. b. Held: Each level requires hearsay analysis under 805 (passed - both agent admissions).
Mahlandt v. Wild Canid Survival & Research Center (8th Cir. 1978)
a. Wolf biting child case. Prosecution wanted to intro into evidence against defendant Poos 1) Poos's note saying wolf bit child, 2) Poos' comment saying wolf bit girl, 3) board meeting minutes where the wolf biting was discussed (D was a board member). b. The note and the comment were admissible against Poos as admissions. Board minutes were not. All 3 admissible against corporate defendant under agent admission rule 801(d)(2)(D)
Bemis v. Edwards (9th Cir. 1995)
a. [Reliability of statements is purpose of 803(1) and (2)] b. Police brutality civil suit. P seeks to intro ev of a 911 call recording with caller describing police "beating the shit out of" victim. But part of recording has caller repeating the words of someone else. Not clear that there was firsthand knowledge. c. Held: not error to exclude the recording because firsthand knowledge was called into question. d. Note: if he had said "I'm told by my wife that the police are beating the shit out of someone," it would not have been hearsay (2 levels - she has 1sthand knowledge and admiss under 803(1) and he has 1sthand knowledge that she's saying that. This is hypertechnicality - something is bothering the court.
I. Harry v. New Hampshire - double check holding
a. [ease of getting in prior ID] Victim saw D near a police car after the attack. D claimed that seeing him in that context prejudiced the witness. But the gov did not "set up" the sighting. Held admissible. SCOTUS declined to rule as a constitutional matter.
U.S. v. Dominguez
i. Facts: Dominguez was customs officer and it was expected that he would own a gun. Gunshot had killed Mitri [victim]. Government introduced evidence that (a) Dominguez owned a gun, (b) Dominguez asked a friend to bring his to a gun shop to have the barrel replaced a week after Mitri's death, (c) the shop owner saw scratches on the barrel (maybe left by attempt to remove it, (d) shop owner repaired barrel but did not replace it. ii. Issue: Relevant under 401? iii. Holding: This evidence was admissible, regardless of whether it was probative or a weak inference.
State v. Larson (Mont. 1922)
i. Facts: Larson was drinking and allowed daughter to ride horse. Challenged state's intro of evidence showing his blood alcohol level compared to what's allowed for driving a car. iii. Holding: Relevant because it helped the jury be logical.
Knapp v. State (Ind. 1907)
i. Facts: Murder trial. To show the killing was in self defense, D claimed to have heard the victim killed an old man and was dangerous. ii. Issue: Is the fact that the old man died due to senility and alcoholism relevant under 401 and admissible under 402? iii. Holding: Yes - people tend to tell the truth. Makes it less likely that Knapp had heard the rumor. Relevant.
How to run trials post-Bruton: possibilities
i. Joint trial but exclude inculpatory statement ii. Sever trial - more expensive and whoever goes 2nd is advantaged. iii. Multiple juries - expensive iv. B take stand in own defense (highly unlikely) v. Redaction so A not facially implicated (possibly still barred by Gray)
US v. Phelps (KY 1983)
i. [OOC statement by the party must be offered against the party]. Prosecution for possession of cocaine. D had co-defendant Taylor. D's counsel sought to intro evidence that Phelps said to police, "that is my gym bag but Taylor put it in there." ii. Held: inadmissible because cannot use 801(d)(2) to introduce ev in a declarant's favor. Statement does not have to be inculpatory (McGee), but the statement of the party must be offered against the party.
US v. Fortes (5th Cir. 1980)
i. [silence as acquiescence/admission] Armed robbery case. Co-conspirator testified that Fortes was present when he said that Fortes participated in the robbery and Fortes did not deny or speak up. ii. Held: adoptive admission because D would have denied if untrue.
