I. Overview A. Basic Questions 1. What is the applicable rule/principle of evidence? 2. What is the relevance/significance of the advisory committee

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1 I. Overview A. Basic Questions 1. What is the applicable rule/principle of evidence? 2. What is the relevance/significance of the advisory committee comments? 3. Why is this the best objection? Is there an alternative? B. Why have Rules of Evidence 1. concerns the jury s ability to evaluate evidence 2. serve substantive policies ensure that where evidence could affect the outcome that it meets certain criteria. a. Limitations on evidence based on concerns of: 1.) Fairness 2.) Efficiency 3.) Predictability 4.) Consistency 3. further unrelated substantive policies 4. ensure accurate fact finding by encouraging people to be careful and ensuring that they evaluate authentic evidence. C. United States v. Wayne Gillis 1. Cop stopped because of missing tag, discovered marijuana and cocaine. 2. Recreating reality depends on perceptions, story, organization D. Meanings of Evidence 1. Proof what is offered to prove claim, cause of action, or defenses a. Oral testimony and tangible material in the form of exhibits. 2. The Rules guide admissibility through foundations that guide judges 3. In Evidence special form of proof that has met the requirements that allow the jury to consider it in the jury room during deliberations. E. Types of Evidence 1. Real physical, tangible evidence 2. Representative represents something else 3. Testimonial comes from witnesses viva voce 4. Direct proves a fact without requiring any inference 5. Circumstantial inference drawn from it bears on fact in issue 1

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3 II. The Functions of Judge, Jury, and Attorneys at Trial A. Applicable Rules: 1. Rule 101 Scope a. Rules govern proceedings in the courts of the united state and before united states bankruptcy judges, united states magistrate judges (subject to rule 1101) 2. Rule 102 Purpose and Construction a. These rules shall be construed to secure fairness and administration, elimination of unjustifiable expense and delay and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings just determined. 3. Rule 103 Rulings on Evidence a. Effect of Erroneous Ruling Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and 1.) Objection in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context or 2.) Offer of proof- in case the ruling is one excluding evidence, substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal b. Record of offer and ruling court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. c. Hearing of Jury in jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury or offers of proof or asking questions in the hearing of the jury d. Plain error 1.) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. Notes on ) Standard of Review trial judges are given wide latitude usually only overruled for abuse of discretion or plain error a) Exception for constitutional error reversible unless harmless beyond a reasonable doubt 3.) Objections must be specific 3

4 a) Need to be specific as to parts, parties, purposes, grounds b) General objection may acquire specificity from context c) Objection only preserves specific ground(s) named 4.) Overbroad offers a) If don t limit offer to admissible part of evidence, may not complain on appeal if court excludes entire offer 5.) Is an error harmless? a) Was it the primary evidence? b) Did the other party get to present the substance of their claim c) Did the jury instructions cure? d) Jury argument e) Was it cumulative f) Was other evidence overwhelming? 6.) Plain error rarely used only where it would seriously affect the fairness, integrity or public reputation of judicial proceedings to leave error uncorrected 7.) Timeliness usually objection must precede witness s answer 4. Rule 104 Preliminary Questions a. Questions of Admissibility Generally Preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of (b). In making its determination, it is not bound by the rules of evidence except those with respect to privileges b. Relevancy conditioned on Fact When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition c. Hearing of the jury hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or when an accused is a witness and so requests d. Testimony be Accused the accused does not by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case e. Weight and credibility This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility Notes on Rule ) Rule 104 (a). In making his decision about admissibility, the judge can take into account inadmissible evidence like hearsay, but may not consider privileged evidence. 2.) Rule 104(b) divides fact finding between judge and jury a) Judge decides preliminary questions of fact pertaining to rulings on admissibility. If a reasonable jury could find that 4

5 the condition was met by preponderance of the evidence, then jury gets fact to determine b) Jury determines weight of evidence. 5. Rule 105 Limited Admissibility When evidence which is admissible as to one party or one purpose but admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly 6. Rule 106 When a writing or recorded statement or part thereof is introduce by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. B. Roles of Judge, Jury and Attorney 1. Judge a. Judge has responsibility to manage trial 1.) Rule 611 (a) a) The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to 1 make the interrogation and presentation effective for the ascertainment of the truth, 2) avoid needless consumption of time, and 3) protect witnesses from harassment or undue embarrassment b. rules on evidentiary objections and admissibility 1.) discretion is constrained by rules 2.) Judges rely on reason and experience to answer relevancy questions a) Other rules may require the application of legal rules and principles. c. General Rule: It is the lawyers prerogative to structure their case as they see fit, and it is inappropriate for the judge to sua sponte offer strategy suggestions. 2. Jury a. decides facts, evaluates admitted evidence, applies to law as given to evidence, and reaches verdict 3. Attorney a. duty to act ethically b. duty to act zealously on behalf of clients on two levels 1.) in present favorable outcome at trial 2.) future preserving record for appeal 3.) potential conflict between duties: Does an attorney rely on opposing counsel to object to inadmissible evidence or do they have an obligation to offer only admissible evidence? c. must lay foundations for evidence 1.) foundations prerequisites for admissibility 5

6 C. Applicable Case Law 1. Ohler v. United States (SC 2000) a. Ohler objected to evidence of her prior felony conviction being admitted. After the government s motion to admit the evidence was granted, Ohler testified on direct examination as to her priors. b. Held: May not challenge the ruling on the motion in limine unless the objection was renewed at trial. 1.) Defendant who preemptively introduces evidence of prior conviction may not appeal the admission of such evidence c. Dissent: Ruling closes off option to defendant of trying to mitigate damage of prior conviction by preemptively bringing u 6

7 III. Relevance A. Applicable rules 1. Rule 401 Definition of Relevant Evidence Relevant Evidence means evidence having any tendency to make the existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence Notes on 401: a. Relevance is initial threshold all admissible evidence must be relevant (not all relevant evidence is admissible). b. Two part test 1.) Probative a) More remote less probative value 2.) Of fact of consequence to the determination a) Relate to elements of claim, cause of action, defense, credibility of witness or helpful background information b) Relevance how one thing relates to another only relevant in context, not inherently Relevant to What? i. May be multiple possible inferences from fact only need one to make it relevant c. Conditional relevance under Rule 104(b) if the relevance depends on the existence of a separate fact can be admitted if there is sufficient evidence for reasonable jury to find that fact in question exists 1.) Test: Do you know enough right now to make a relevance determination 2.) Not the same thing as rule 105 limited admissibility a) Limited admissibility relevant but may only be used for one purpose b) Conditional relevance not relevant until conditional fact established 3.) Failure to connect up appealable error or mistrial 2. Rule 402 Relevant Evidence Generally Admissible Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority Notes on 402: a. Immaterial if evidence helps prove proposition other than one at issue in case B. Applicable objections 1. The evidence is irrelevant and inadmissible under Rules 401 and 402. a. Response: 401 is minimal threshold b. Response: Fact of consequence need not be disputed 7

8 c. Response: Relevance may become apparent when connected up 104(b) C. Applicable Case Law 1. Knapp v. State a. Defendant testified that he heard that the deceased Marshall had clubbed and seriously injured an old man. The prosecution showed that the old man died of natural causes. b. Held: Evidence properly admitted because it is probative as to whether or not the defendant actually heard such a rumor less likely to hear untrue rumor. 8

9 IV. Relevant but Inadmissible Evidence: Exclusion of Unfairly Prejudicial and Other Evidence A. Applicable Rules 1. Rule 403 Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion f the issues or misleading the jury or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. Notes on 403 a. Relevant evidence may be prejudicial only unfairly prejudicial evidence is excluded 1.) Unfair prejudice not just influencing decision maker but tending to lead to decision on improper grounds like emotional basis a) Jury may exaggerate the probative value of the evidence b) Cause jury to disregard issues c) Jury may use evidence for improper purpose 2.) Unfair prejudice limiting instruction does not offset prejudice 3.) Common Types of unfair prejudice: a) Probability evidence i. Statistical evidence designed to show a low probability that another person with the same characteristics committed the crime is usually excluded b) Graphic depictions of violence i. Evidence can not be so violent as to lead to a purely emotional verdict c) Novel scientific evidence i. Recreations of event must be substantially similar ii. Rules of expert witnesses iii. Must meet Daubert Factors (non-exclusive, flexible list Kumho Tires (a) Is the subject matter scientific knowledge? (b) Has the theory or technique been tested? (c) Peer review and publication? (d) Known or potential rate of error? (e) Standards? (f) General acceptance in field (old Frye test) iv. Must show: (a) Based upon sufficient facts or data (b) Testimony is product of reliable principles and methods (c) Witness has applied the principles and methods reliability to the facts of the case d) Similar events, happenings or occurrences i. Often offered for: 9

10 ii. iii. (a) Accidents to show causation or dangerousness (b) Sales to show value (c) Prior course of dealing to show meaning of contract (d) Prior industry custom to show meaning of action/document (e) Lack of similar occurrences to show absence of culpability or fault potential for unfair prejudice (a) differences diminish the worth of the evidence (1) can jury judge significance of differences? (b) mislead/distract jurors (c) not directly on point if allowable only need evidence sufficient to support finding 4.) Ways to cure or reduce prejudice a) Stipulations b) Limiting instructions c) Admitting liability on issue and reducing relevance b. Discretionary remedy 1.) Jury determines credibility judge determines probative value if the evidence is believed. c. probative value is a distinct inquiry from 401 relevance and may include a consideration of evidentiary alternatives, and need for the evidence d. misleading jury = jury might give undue weight to evidence 1.) demonstrative evidence is misleading if it distorts or misrepresents the underlying evidence. B. Applicable Objections 1. The evidence will cause confusion of the issues 2. The evidence is cumulative and inadmissible under Rule 403. a. Response: cumulative should not interfere with right to present persuasive case i.e. corroborate testimony b. Response balance should be struck in favor of admission and Rule 403 is an extraordinary remedy to be used sparingly 3. The evidence will mislead the jury 4. Evidence of other accidents is irrelevant and inadmissible under Rules 401and 402 OR inadmissible under Rule 403 because the probative value of such evidence is substantially outweighed by the dangers of unfair prejudice, confusion of the issues and misleading the jury. a. Must show substantially similar conditions and circumstances and still subject to trial court s discretion for exclusion based on unfair prejudice, confusion of the issues, and waste of time on collateral matters. 5. Evidence of claims made by the plaintiff other than those at issue here is irrelevant and inadmissible under 401 and 402 OR is inadmissible under Rule 403 because its probative value is substantially outweighed 10

11 by the danger of unfair prejudice, confusion of the issues, or misleading the jury. a. Response: strongly relevant to falsity of present claim 6. Evidence of a party s contracts or transactions other than those at issue here is irrelevant and inadmissible under 401 and 402 OR is inadmissible under Rule 403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. a. Response: relevant to prove terms or meanings of disputed agreement 7. The photographs are highly inflammatory and unnecessary to prove facts at issue. They are unfairly prejudicial and thus excluded by rule 403. a. Response: even though gruesome, photographs depict relevant facts 8. The probative value of this testimony is substantially outweighed by the danger of unfair prejudice a. Response: Rule 403 is not a shield for defendants who engage in outrageous acts. Does not require government to sanitize its case or tell case in monotone. C. Applicable Case Laws 1. People v. Collins a. Math professor testified about the probability that someone else with the same characteristics committed the crime b. Held: Evidence should have been excluded as unfairly prejudicial because the testimony was not adequately based in theory and evidence leading to conjecture without relevance and because it distracted the jury, placed defense counsel at a disadvantage, and risked the jurors giving the expert testimony undue weight. 1.) Evidence did not present probability for each factor and was no help in determining which of the couples with such characteristics did indeed commit the crime 2.) At most a measure of the probability any random couple would have the characteristics. 2. Old Chief v. United States a. Old Chief wanted to stipulate that he had prior criminal convictions rather than allow prosecution to put on evidence. b. Held: Unfair prejudice because it caused risk that jury would improperly generalize prior bad acts into bad character. General rule that the prosecution is entitled to prove its case not really applicable when issue is legal status of defendant apart from current charge. 11

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13 V. Character and Habit Evidence A. Applicable Rules 1. Rule 404(a) Character Evidence not Admissible to Prove Conduct; Exceptions a. Character Evidence Generally: Evidence a person s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion except: 1.) Character of Accused. Evidence of a pertinent trial of character offered by an accused or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under Rule 404(a)(2) evidence of the same trait of the accused offered by the prosecution 2.) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor. 3.) Character of Witness as provided in 607, 608, 609 b. Other crimes, wrongs, acts. Evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in advance of the trial or during the trial if the court excuses pretrial notice on good cause shown of the general nature of any such evidence it intends to introduce at trial. Notes on 404 a. Character evidence offered for three purposes 1.) Propensity to show that the person likely acted in conformity with the trait on this occasion a) For: show which person and version of facts more believable b) Against: Unfairly prejudicial because not always accurate, people can change, distracts from events at issue. 2.) Character trait in issue 3.) Other purposes a) 404(b) b) credibility governed by b. Why have bar? 1.) Those with prior criminal record are already disadvantaged by legal system 2.) Jury may give more weight than evidence deserves 13

14 c. Key Questions: 1.) Is the evidence being offered to show character 2.) What is the purpose of showing character 3.) Is form proper? d. If character evidence is admissible, must still conform to rule 405 e. Exceptions of 404(a) only apply to criminal defendants f. 404(a) does not exclude as noted by 404(b) character evidence used to prove something other than conformity g. Rule 404(a) does not apply if character is directly in issue 1.) Examples a) Entrapment (some states require sub. Showing that not susceptible to crime). b) Negligent entrustment, hiring or supervision (did employee have dangerous reputation) c) Criminal seduction d) Defamation (was plaintiff s reputation defamed) h. If admissible, character trait must still be relevant i. Rebuttal 1.) As noted by 405(a), cross-examination may ask a witness whether they have heard or know of specific acts (should be able to ask either question of opinion or reputation witness). 2.) May call own reputation or opinion witnesses 3.) May rebut character of alleged victim a) Show victim s peaceable character b) Show evidence of same trait of accused. 4.) Once offer character evidence, open self-up to rebuttal a) But difference between taking the stand and testifying as to facts and testifying specifically about character. j. Self-Defense 1.) Offering character of alleged victim to show reasonable belief does not implicate 404(a) because not offering to show conformity. k. Reasonable doubt instruction 1.) Majority Rule: Trial court does not have to instruct jury that evidence of good character may be sufficient to create a reasonable doubt. Few circuit courts disagree. l. Other crimes 1.) does not have to be criminal or have arrest/conviction and does not have to be prior as long as probative and jury could find by preponderance of the evidence that defendant did the other act. a) Dowling acquittal okay because could be based on some reason other than that didn t commit crime. 2.) Element proving must be in dispute a) Old Chief defendant allowed to stipulate status to remove issue from contention but prosecutorial freedom to prove other elements such as intent remains. 14

15 3.) modus operandi theory signature quality to crimes 4.) Motive not an element of most cases but can be useful and relevant in putting together a circumstantial case 5.) Other purposes list is not exclusive a) Absence of mistake b) Demonstrate a common plan or scheme c) Charged offense and other crimes and inextricably intertwined i. Other offense is part of act that is basis for charge ii. Coherent account of charged crime needs to mention other offense res gestae needed to complete the story (a) IS there a sufficiently close nexus to be considered party of the same act or transaction and not an other act? d) To show knowledge e) To show opportunity or capacity f) To show consciousness of guilt g) To support or rebut a claim of entrapment h) To rebut claim of accident doctrine of chances What are the chances that this would happen repeatedly? 6.) New Rules 413, 414, and 415 allow evidence of similar crimes of sexual assault or child molestation to be used for any purpose in civil and criminal cases for same type of crime/same type of action. 2. Rule 405 Methods of Proving Character a. Reputation or Opinion. In all cases in which evidence of character or trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. b. Specific Instances of Conduct. In cases in which character or a trait of a character is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person s conduct. Notes on 405 a. Reputation witness must have sufficient familiarity with person and the community and the circles the person move in b. Opinion witness must have sufficient familiarity with the person c. Cross examination 1.) Cross examining with specific acts attacks knowledge and credibility 2.) Must be in good faith and specific acts must be relevant to character traits involved at trial 3.) Extrinsic proof of specific act or knowledge of it not permitted 4.) Hypothetical questions involving guilt of charged offense improper 15

16 3. Rule 406 Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity wit the habit or routine practice. Notes on 406 a. Habit is narrower than character: specific regular response to a repeated specific situation 1.) person s regular practice of meeting specific kinds of situations with regularity 2.) Can observe habit, can only have opinion to character 3.) Even if regular, is conduct sort that could be habit? 4.) Has sufficient evidence been established that the person had the habit? 5.) Almost involuntary = habit 6.) Routine. reliable 7.) Proof: both opinion and specific acts acceptable a) Proof must show frequency and regularity of behavior 8.) Standard of care in business/industry falls under 406 B. Applicable Objections 1. Character evidence where admissible must be shown by reputation not opinion testimony a. This common law objection is no longer valid under the federal rules. Rule 405 allows character evidence to be given in the form of either reputation or opinion testimony. 2. The question calls for evidence of character which is not admissible under Rule Evidence of Specific acts is admissible to prove a person s character. a. Response: Character is in issue in the case. 4. Cross-examination of the witness concerning this alleged act is improper because counsel has not demonstrated a good faith factual basis OR the alleged act is not relevant to the character trail for which the witness testified OR it assumes guilt of the crime for which the defendant is now on trial. 5. The witness has not been shown to be qualified to testify to the person s reputation OR an opinion as to the person s character. 6. I did not receive sufficient notice of the prosecution s intent to offer evidence of the defendant s other crimes as required by Rule 404(b). a. Response: Defendant failed to trigger by making a timely request. b. Response: Even if no formal notice, defendant had knowledge and the information was fully disclosed. 7. Even if the other crimes evidence is offered for a purpose other than proof of propensity, it has not been adequately proven. a. Response: satisfied according to 104(b) if the judge finds that the jury could find by preponderance of the evidence 16

17 8. Inquiry into a person s other crimes, wrongs or acts is barred by Rule 404(b). The issue in this trial is whether the person did what is claimed she did not whether she did something wrong at another time. a. Response: Logically relevant to issue other than propensity 9. Even if the other crimes evidence is offered for a purpose other than proof of propensity or is offered under Rules , it is not offered for a fact in dispute. Therefore it is inadmissible under Rules 403 and 404(b). C. Applicable Case law 1. People v. Zackowitz a. The prosecution wished to show that defendant owned many guns to rebut defendant s charge of heat of passion killing. b. Held: Should have been excluded because propensity only an issue once defendant raises and the evidence was only relevant as propensity evidence. 2. Michelson v. United States a. Entrapment action and defendant brought 5 witness showing good character b. Character evidence in form of reputation is anomalous because it can only be based on hearsay. c. Only a conviction can be used to undermine trustworthiness of witness, but mere arrest is sufficient to undermine reputation d. Once defendant raises, defendant opens self up to rebuttal 3. Rex v. Smith a. Evidence of murders of two other women was allowed in. b. Held: Evidence admissible to show other purposes besides propensity. 1.) Acts admissible if prima facie evidence that defendant committed the other crimes. 4. Dowling v. United States a. Bank robber subsequently robbed old woman but was acquitted of this. b. Held: Evidence of other acts admissible even though acquittal because do not have to be proven beyond a reasonable doubt. Double jeopardy not a problem because acquittal is not the same as a finding that he did not do crime. 5. Huddleston v. Untied States a. District Court does not need to make a preliminary finding that the government has proven the other act by a preponderance of the evidence before the evidence goes to the jury if there is sufficient evidence from which the jury could make such a finding. 1.) Consider all evidence together sum may be greater than parts 6. United States v. Beechum a. Similarity of other acts (possessing stolen silver dollar and stolen credit cards from mail route) sufficient to overcome 403 objection. 7. Jones v. Southern Pacific Railroad 17

18 a. 9 citations over 29 year engineering career not sufficient to establish habit. 8. People v. Chambers a. Prosecution trying to argue that missing earrings indicative of state of mind of defendant. 18

19 VI. Other Exclusions of Relevant Evidence A. Excluding relevant evidence because likely to mislead jury and/or to promote public policy B. Applicable Rules 1. Rule 407 Subsequent Remedial Measures When after an injury or harm allegedly cause by an event, measures are taken, that if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent remedial measure is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product s design, or a need for warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such ad proving ownership, control or feasibility of precautionary measures, if controverted or impeachment. Notes on 407: a. Policy choice to encourage individuals to take safety measures. b. Concerned about relevance: is taking remedial measures good indicator of negligence? c. Remedial measure: taken after event and would have decreased the likelihood of the event if they had been taken before d. Can show remedial measures taken by third parties e. Some courts say can show remedial measures was compelled to take f. Other purposes: 1.) Rebut defense s theory of condition of accident scene 2.) Where defendant has destroyed relevant object 3.) Other purpose must be controverted 4.) Impeachment narrow reading: where factual assertions contradicted by remedial measures or where claiming X was best or safest it could be. 5.) May still be barred under 403 court must weight probative value versus chance will be impermissibly used to show negligence or culpability. 2. Rule 408 Compromise and Offers to Compromise Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusions when the evidence is offered for another purpose, such as proving bias 19

20 or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Notes on 408 a. Policy choice to encourage settlement talks. b. Is there an offer to compromise? 1.) Look at context and character of statement or offer for element of concession. Factors include: a) Timing of offer b) Existence of disputed claim c) Conditional nature of offer d) Presence of counsel c. Controversy over whether can ever be used to impeach d. Courts divided over whether can use to show that criminal accused settled or attempted to settle related civil claim. e. Common law: compromise protected but surrounding words come in. 3. Rule 409 Payment of Medical and Similar Expenses Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Notes on 409 a. Policy choice to not discourage help before a court determines liability. b. Similar expenses: related to medical but not lost wages, property damages, destruction. c. Statements, conduct, behavior that accompanies offers are admissible. 4. Rule 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements Except as otherwise provided in this rule, evidence of the following is not in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: 1.) A plea of guilty which was later withdrawn 2.) A plea of nolo contendere 3.) Any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas. 4.) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However such a statement is admissible (i) in any proceeding wherein another statement in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it or (ii) in a criminal proceeding 20

21 for perjury or false statement if the statement was made by the defendant under the oath, on the record and in the presence of counsel. Notes on 410 a. Must be made in course of plea negotiations with prosecuting attorney b. Not protected: 1.) Statements to police officers 2.) Statements without the intent to negotiate a plea 3.) Statements after plea agreement is finalized 4.) Statements during negotiations that result in plea of guilty c. Defendant s plea and statements may be offered against someone other than defendant d. Disputed whether or not can offer prosecution statements or offers to compromise. e. Knowing and voluntarily waivers of 410 are effective 5. Rule 411 Liability Insurance Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose such as proof of agency, ownership, or control or bias or prejudice of a witness. Notes on 411 a. Admission could be highly prejudicial because insurance not related to degree of care. b. Other purposes: 1.) To show trade custom of limiting liability 2.) To show why a safety inspection was made 3.) To prove existence of effective contract exculpating the defendants from all risks of loss or damage. c. May be used to show liability of 3 rd party 6. Rule 412 Sex Offense Cases: Relevance of Alleged Victim s Past Sexual Behavior or Alleged Sexual Predisposition (a) Evidence generally inadmissible.--the following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions.-- (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; 21

22 (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) evidence the exclusion of which would violate the constitutional rights of the defendant. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility.-- (1) A party intending to offer evidence under subdivision (b) must-- (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. Notes on 412 a. Forecloses Rule 404(a)(2) in criminal cases b. Common Law: Defendant could claim consent and present extrinsic evidence of sexual relations and promiscuity c. Civil actions must show that 404(b) is met 1.) Other purposes: a) Show sexual harassment not unwelcome b) Show another possible father/limit pain and suffering 2.) Still have to meet strict balancing test d. Applies to all cases that involve sexual misconduct including those where sexual misconduct is relevant as a motive or background evidence. e. Other sexual behavior: 1.) physical conduct, 2.) activities that imply sexual intercourse or conduct (illegitimate child, birth control) 3.) fantasies or dreams 4.) reputation/opinion evidence f. Sexual predisposition 1.) Dress 2.) Speech 3.) Life-style 4.) Admissible: prior false claims if otherwise admissible 22

23 7. Rule 413 Evidence of Similar Crimes in Sexual Assault Cases (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved-- (1) any conduct proscribed by chapter 109A of title 18, United States Code; (2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person; (3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4). Notes on 413 a. Supercedes 404 including allowing specific instances of misconduct need not have a conviction. 8. Rule 414 Evidence of Similar Crimes in Child Molestation Cases a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved-- 23

24 (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child; (2) any conduct proscribed by chapter 110 of title 18, United States Code; (3) contact between any part of the defendant's body or an object and the genitals or anus of a child; (4) contact between the genitals or anus of the defendant and any part of the body of a child; (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5). Notes on Rule 415 Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. Notes on 415 a. Sexual Assault Cases Generally b. Date Rape and Culture of Acceptance Friedland 1.) Culture of acceptance results from 2 predominant stereotypes: the punished female and the aggressive male 2.) Culture of acceptance generates latent gender based prejudice in date-rape cases C. Applicable Objections 1. Evidence of other sexual behavior or predisposition of the victim of sexual misconduct is not admissible. a. Response: Victim placed reputation into controversy. b. Response: Sexual behavior is intrinsic to the alleged sexual misconduct and so is not other sexual behavior. D. Applicable Case Law 1. Moe v. Avions a. Federal trial court in diversity action excluded evidence of postplane crash warning on suction filters pursuant to rule

25 b. Held: Whether or not to exclude via 407 (or similar state rule) is a matter of state policy. 1.) Where there is a conflict that is based on policy not relevancy or truth seeking, then state controls b/c there is no federal products liability law and elements of causes of action are governed by state law and variation on 407-type rules is tied in substantive causes of action. 2. Charter v. Chleborad a. Medical malpractice case held that the plaintiff could use evidence of insurance to show potential bias of witnesses 25

26

27 VII. Examination and Impeachment of Witnesses A. Overview 1. Types of Restrictions a. Competency of Witnesses g. Substantive limits to keep suspect evidence out h. Form limitations 2. Direct Examination Purposes a. Elicit information relevant to cause of action, claim or defense b. 3 parts to testimony: background, scene and action. 3. Cross Examination Purposes a. Destroy credibility b. Test capacity c. Fill in gaps d. Corroboration e. Cross examination allows you to assume facts not in evidence. 4. impact and value of witness testimony depend on: a. perception b. memory c. narration d. sincerity B. Applicable Rules 1. Rule 602 A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness own testimony. This rule is subject to the provisions of 703 relating to opinion testimony by expert witnesses. Notes on 602 a. Do not need absolute certainty b. Opinion testimony needs to be based on personal knowledge c. Expert witnesses exempt 2. Rule 607 Who may impeach The credibility of a witness may be attacked by any party including the party calling the witness Notes on 607 a. Common law: Voucher Rule could not attack own witnesses credibility 1.) Exception: Adverse witness and you were surprised they were hostile. 2.) Adverse construed to mean positively harmful narrower than Rule 611(c) definition. b. 5 Ways to impeach 1.) prior inconsistent statement (Rule 613) a) to be admissible for truth of matter must meet 801(d) or hearsay exception 27

28 b) 403 objection if call witness just as conduit for hearsay to impeach with prior inconsistent statements 2.) Untruthful character (Rule ) 3.) Defects of Capacity a) Infirmity that affected perception, accuracy of memory, or ability to testify accurately or lack of opportunity to observe event b) Examples: i. Mental illness or infirmity affecting capacity at event or trial ii. iii. iv. Alcohol or drug use Bad eyesight, memory, hearing but court reluctant to allow experts to testify about reliability of eyewitness testimony in general Testimonial capacity: perception, memory, narration, sincerity 4.) Contradictions a) Can use extrinsic evidence to prove contradiction of material facts but not collateral facts i. Traditional rule: Must have probative value to merits of case independent of impact on credibility ii. Courts sometimes allow if the witness were unlikely to be mistaken about the collateral matter were their story true 5.) Bias a) Motivation to lie: personal relationship, financial stake, penal interest, fear b) Can use extrinsic evidence to show bias c) No special foundation, but some circuits require that impeached must have opportunity to admit or deny facts c. General Rule on extrinsic evidence: If extrinsic impeachment evidence is offered it must be in the form of reputation or opinion or for some additional reason beyond veracity such as bias, a fact in issue, testimonial capacities or conviction of a crime. Not admissible for collateral matters. d. Bolstering 1.) General Rule: Can t Bolster Witness before attack a) Exception: Most Circuits allow prosecution to show cooperation agreements e. Removing the Sting bring out impeaching information prior to attack f. Rehabilitation 1.) General Rule: Rehabilitation of Witness must correlate to attack 3. Rule 608 Evidence of Character and Conduct of Witness 28

29 a. Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion and reputation, but subject to these limitations: 1.) The evidence may refer only to character for truthfulness or untruthfulness and 2.) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise 3.) May not testify about truthfulness of other witnesses testimony b. Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness s credibility other than conviction of a crime as provided in rule 609 may not be proved by extrinsic evidence. They may however in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness: 1.) Concerning the witness character for truthfulness or untruthfulness 2.) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being crossexamined has testified The giving of testimony, whether by an accused or by another witness, does not operate as a waiver of the accused or witness s privilege against self-incrimination when examined with respect to matters which relate only to credibility. Notes on 608 a. Specific Acts: 1.) Must have good faith basis 2.) Can ask about specific act, but not whether was arrested or charged 3.) Bound by answer 4.) Limited by Rule ) Admissible for other purpose a) Relevant to material fact b) Bias c) Rebut factual assertions d) Cure misleading statements e) Memory f) Perception g) knowledge h) But limit to amount of bootstrapping courts will allow to do b. Character Witness Cross-examination 1.) Must have good faith basis before ask Have you heard or Did you know? 2.) Character evidence for impeachment strictly limited to veracity c. General background information is not impermissible bolstering d. Impeach by intrinsic evidence: depends on answers of witness 29

30 e. Impeach by extrinsic evidence: depends on outside witness, documents or other evidence 4. Rule 609 Impeachment by Evidence of Conviction of Crime a. General rule. For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (e) Pendency of appeal. The pendency of an appeal therefrom 30

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