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Evidence from Professor Echohawk

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What kinds of evidence are not hearsay?
E)    Not hearsay:  When introduced to prove
i)    Personal Knowledge/Observations:  Evidence that the witness, on the stand and subject to cross-examination, observed
ii)    Things that are inferences and not assertions
Slander:  Words offered to show the publication of a slander
Notice or State of Mind:  Words showing that a person was given notice of a fact, or establishing a state of mind (even if the evidence does not directly assert that the person has a specific state of mind)
Oral Contract:  Words objectively showing that a person orally entered into a contract
Silence: Silence is admissible if you are not making an assertion about the silence, but proving some other assertion, like that the train was not too cold and that the conductor would have said something if it was too cold.
Implied Assertions in Another’s Statements (in the FRE):  Not offered to prove the truth of the matter asserted, but some other inferred proposition.

Define "hearsay", and "statement"
B)    Definition:  Rule 801(c):  Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
i)    Rule 801(a):  A “statement” is
(1)    An oral or written assertion, or
(2)    Non-verbal conduct of a person, if it is intended by the person as an assertion
(3)    A witness may testify about his thoughts and feelings based on the content of others’ statements, including their words, to prove the truth of how the witness himself felt.

What is relevant evidence?
Evidence that tends to prove or disprove a proposition
What is an offer of proof?
A)    An explanation given to the record concerning the content of evidence that is excluded by the court.  Helps the appellate court determine whether reversible error occurred
How do you make an offer of proof?
C)    How to make an offer of proof during direct examination:
i)    Tangible offer:  Evidence is given to the reporter for inclusion on the trial record.  Reason for exclusion is also recorded.
ii)    Witness offer:  Witness is examined outside the juror’s hearing for the record, reason for exclusion is also recorded.  Explanation of the relevance/purpose of the offered testimony should also be recorded
iii)    Lawyer offer:  Lawyer whose evidence is excluded makes a statement for the record concerning what the evidence would have been.
D)    How to make an offer of proof without a witness on the stand:
i)    Specifics of the evidence are shared with the judge
ii)    May not be made for evidence that counsel could not possibly bring to court because the witnesses are unavailable to him
When can you use leading questions?
iii)    Leading Questions:  [when the question asker is the one testifying about facts]
(1)    Leading questions should not be used in direct exam, except as necessary to develop testimony.  
(2)    Leading is allowed on cross exam.  
(3)    Leading is allowed when there is a hostile witness, adverse party, or witness identified with adverse party.
(4)    [Leading is allowed for preliminary matters not in controversy, when the witness gives a contradictory answer, witness has limited understanding, or to refresh the witness’s memory]

How do you formally submit tangible evidence?
A)    How to submit tangible evidence:
i)    Marking for identification: providing opposing counsel and judge to inspect
ii)    Laying the foundation:  describing why the evidence is being submitted, and whether there have been any changes since the time of the offense.  A “chain of custody” may need to be established if the item could be confused with other similar objects.
iii)    Offering into evidence:  Formally offering the evidence to the court
iv)    Securing an express ruling on the admission for the record:  Silence does not mean acceptance of the evidence
v)    Precaution:  Removing “for identification” from the evidence once it is admitted
vi)    Publishing the exhibit to the jury
B)    Demonstrative evidence:  Like a chart or other aid prepared after the time of offense
i)    Must be a “fair representation” of what it purports to show – testimony should establish that it is so

If all evidence is prejudicial in some respect, how do you know that it should be excluded for being too prejudicial?
iii)    All evidence has some prejudicial value.  The question is whether it is prejudicial enough to cause the jurors to decide the case on an improper basis, like emotion
What are the steps for analyzing whether testimony is hearsay?
C)    Steps for analysis:
i)    Out of Court Statement?  “Out of court” means outside the current court and hearing, not just any court or hearing
ii)    What is it being offered to prove?  It may be hearsay for one purpose but not for another.
iii)    Are we relying on the credibility of the defendant or someone else?

Which hearsay exceptions are "declarant's availability immaterial"?
i) Present Sense Impression 803(1)
ii) Excited Utterance 803(2)
iii) State of mind, emotion, or physical condition 803(3)
iv) Statements made for medical treatment or diagnosis 803(4)
v) Past Recollection Recorded 803(5)
vi) Present Recollection Refreshed 612
vii) Business Records 803(6)
viii) Public Records 803(8)
ix) Ancient documents 803(16)
x) Learned Treatises 803(18)
xi) Reputation as to Character 803(21)
xii) Prior Identification 801(d)(1)(C)
xiii) Judgment of Prior Conviction 803(22)
What kind of evidence might be hearsay, and might not?
F)    Maybe hearsay:
i)    Implied Assertions of Another’s Statements (other than in the FRE):  It may be hearsay because it is offered to prove the declarant’s belief in the implied propositions and declarant is unavailable
(1)    Offering statistical evidence that is based on out-of-court findings may be inadmissible hearsay because the veracity of persons who complied the data could not be challenged in court.
(2)    Sea captain scenario:  A captain inspected a vessel and embarked with his family on it.  Is that fact admissible to prove the vessel was seaworthy?

Which kinds of hearsay exceptions are only permitted when the declarant is unavailable?
former testimony, dying declaration, statement against interest, and forfeiture by wrongdoing (statements of a declarant admitted where a party has caused the declarant to be unavailable)
Define and Justify a present sense impression exception to hearsay.
i) Present Sense Impression - 803(1)
(1) Definition: Declarant makes a contemporaneous description of an event where time between observation and utterance is very short and is based on personal knowledge
(2) Justification: No time to formulate a lie; just describing what he senses.
Define and Justify a excited utterance exception to hearsay.
ii) Excited Utterance - 803(2)
(1) Definition: Statement made while under shock or in emotional state such that self-interest could not have been formulated by reasonable reflection, where the statement’s content relates to the startling circumstances
(a) Circumstances must have been sufficiently startling to produce nervous excitement
(b) There is no time limit. There just can’t be so much time that the exciting influence loses its sway over the declarant and he has time to formulate a lie
(2) Justification: Declarant does not have time to formulate a lie if they speak soon enough
When can you claim an exception to hearsay for state of mind, emotion, or physical condition?
iii) State of mind, emotion, or physical condition - 803(3)
(1) Definition: Statement establishes someone’s state of mind at a point in time without testifying about the truth or falsity of his statements.
(a) State of mind must be a material fact that is needed to prove the claim against the adverse party
(i) Intent to kill/steal
(ii) Intent to have papers take effect as a will or deed
(iii) Alienation of affections of a spouse
(iv) Damages for pain & suffering (when appropriately raised)
(2) Limitations:
(a) Feelings, not External Facts: Statement can only testify about feelings, not external facts, because the declarant is not in court to testify about the truth of those facts (**)
(b) Present or Future Intent, not Past: Statement can apply to intent to do something in the present or in the future, but not the past
(i) (e.g., statement can’t be opinion of what declarant thought he/she happened in the past, like thinking that she was poisoned, but can express what she thinks is happening or will happen in the future)
(ii) Justification: Admission of all backward-looking statements would lead to all hearsay being admissible under “state of mind” because anyone would be permitted to testify about what they thought happened in the past. (**)
(c) When Concerning Another Person, Must be Corroborated: Statement of intent to do something in the future with someone else must be corroborated. (i.e. you can’t say what another person plans to do in the future without corroborating with their own actions/statements)
(d) Market surveys are sometimes considered hearsay, and sometimes not. (**)
Define and Justify a "statements for medical treatment/diagnosis" exception to hearsay.
iv) Statements made for medical treatment or diagnosis - 803(4)
(1) Definition: Statements about the declarant’s physical condition, medical history, symptoms or pain that are made to anyone providing medical treatment (not just doctors).
(a) A mother can speak for her child under this exception
(2) Limitations:
(a) Usually inadmissible if the statement is obtained in preparation for litigation
(b) Statement must be pertinent to the treatment/diagnosis, not to identify external facts (i.e., identity of an attacker)
(3) Justification: Patients are assumed to be truthful when talking with physicians to get correct treatment.
Define a past recollection recorded hearsay exception.
v) Past Recollection Recorded - 803(5)
(1) Definition: Statement is in a memo or record concerning a matter about which the witness once had fresh and correct knowledge but now has insufficient recollection to enable the witness to testify fully and accurately.
(a) The record can be read into evidence but cannot be an exhibit unless offered by an adverse party.
What is a present recollection refreshed for hearsay purposes?
vi) Present Recollection Refreshed - 612 (1) Definition: Witness uses a writing [or object] to refresh memory for the purpose of testifying: (a) While testifying (b) Before testifying, if necessary in the interests of justice, and the adverse party is provided a copy and is entitled to cross-examine the witness thereon and to introduce relevant parts of the writing as evidence (2) Limitations: (a) Irrelevant sections of the writing can be redacted after in camera review. Any portions that are admitted must be available on appeal. (b) The writing or object should be a “mere stimulus” to obtain present recollection (** what does that mean?) (c) Justification: (**)
What is the business records exception for hearsay, and why is it justified?
vii) Business Records - 803(6)
(1) Definition: Records made of regularly conducted business activity or records made in the normal course of business. Should be made contemporaneously with the events.
(a) The emphasis in this rule is on the totality of the circumstances reliability of the records
(2) Limitations:
(a) If there is hearsay in the record, it will have to be redacted or must fit under an exception before it is admissible
(b) Identifying information must be redacted – the records cannot establish a person’s identity because there is no assurance of truth of a statement to the business by a stranger to it.
(3) Justification: There is a duty for employees to make accurate reports to the business, so they are likely to be truthful
What is the public records exception for hearsay?
viii) Public Records - 803(8)
(1) Definition: Records, reports, statements, or data compilations of public offices that set forth:
(a) Activities of the office/agency
(b) Matters observed by police officers in criminal cases
(c) In civil cases, or when raised against the government in criminal cases, factual findings [and opinions/conclusions] resulting from an investigation made under authority granted by law unless the sources are otherwise trustworthy.
(i) Justification: The 6th amendment assures a right to confront your accuser.
(2) Note: If a record is made for the specific purpose of convicting a defendant, the public records exception may allow it, but not the business records exception.
What is an ancient document for hearsay purposes?
ix) Ancient documents - 803(16)
(1) Definition: Statements in a document that is more than 20 years old that is authentic.
what is a learned treatise for hearsay purposes and how is it justified?
x) Learned Treatises - 803(18)
(1) Definition: Statements from a published treatise, periodical, or pamphlet that is established by expert testimony or judicial notice as a reliable authority.
(2) Limitation: Statements can be read into evidence, but cannot be entered as exhibits.
(3) Justification: Some writings are so authoritative that they are not really up for dispute or cross-examination.
How does the prior identification exception to hearsay work?
xii) Prior Identification - 801(d)(1)(C)
(1) Definition: Statement by declarant prior to a trial that identified a person after perceiving the person
(a) E.g. picking a perpetrator from a lineup at a police station
(b) Can be used to support the declarant’s current testimony
(2) Limitations:
(a) Can only be a person identified, not objects
(b) Must be made at a trial or hearing where the declarant is subject to cross-examination concerning the statement (** how does this fit with the police lineup ID?)
What makes a declarant "unavailable"?
i) Definition of “Unavailable”
(1) Declarant is protected by a privilege
(2) Dec refuses to testify
(3) Dec testifies about a lack of memory
(4) Dec is dead or has physical/mental illness
(5) Dec is unable to be contacted by reasonable means
What is "former testimony" and how is it admitted as an exception to hearsay?
ii) Former Testimony - 804(b)(1)
(1) Definition: Statement given in a prior hearing of the same or different proceeding or deposition, where
(a) there was opportunity to cross examine,
(b) a party had a similar motive to cross-examine the declarant in that proceeding, and
(i) (i.e., the past proceeding shows that there was similar motive in the counsel’s development of the former testimony)
(c) the declarant gave the testimony against the same party, or in a civil case, against a predecessor in interest (**).
(2) Former testimony can be admitted without meeting these requirements if: In a perjury prosecution proceeding, it is an admission, it is used for impeachment(**), it is past recollection recorded, it is present recollection refreshed.
What is a dying declaration, and what is its justification?
iii) Dying Declarations - 804(b)(2)
(1) Definition: Statement under belief of declarant’s near and certain death that identifies the cause or circumstances surrounding the believed impending death
(a) Declarant must have personal knowledge of the cause/circumstances – not guessing
(2) Limitations: Only admissible in a homicide criminal action or a civil action
(3) Justification: The solemnity of the occasion makes declarant likely to be truthful
What is a statement against interest?
iv) Statement Against Interest - 804(b)(3)
(1) Definition: Declarant had particular means of knowing the facts he stated, and the statement he made was against monetary or property interests or subjected the declarant to civil/criminal liability with no probable motive to falsify the facts stated.
(a) If the statement tends to exculpate the accused from criminal liability, the statements must be corroborated
(b) If portions of a statement against interest are self-incriminating under criminal law, the statement can only be admitted to the extent that it is not self-incriminating.
What kinds of conduct/statements can constitute an admission?
iv) Admissions - 801(d)(2)
(1) Subject matter:
(a) Facts and opinions, even if the party does not have personal knowledge
(b) Silence
(c) Nonverbal actions that imply admissions
Who can make admissions that can then be used against a party in court?
(2) Admissible Statements:
(a) Statements of the party itself
(b) Statements that a party has manifestly adopted or expressed belief in their truth
(c) Statements made by a spokesman (concerning the subject)
(d) Statements made by an agent (if agent acts within the scope of his agency relationship)
(e) Statements by co-conspirators (made in furtherance of the conspiracy
What kind of subject matter can be an admission?
iv) Admissions - 801(d)(2)
(1) Subject matter:
(a) Facts and opinions, even if the party does not have personal knowledge
(b) Silence
(c) Nonverbal actions that imply admissions
Talk about the Residual Hearsay Exception, Rule 807
D) Residual Hearsay Exception - Rule 807
i) Definition: If the statement is not covered by Rule 803 or 804, but there are equivalent circumstantial guarantees of trustworthiness, it can be admitted if the court determines that
(1) The statement is offered as evidence of a material fact
(2) The statement is more probative on the point for which it is offered than other evidence that can be reasonably obtained
(3) The general purposes of the FRE and interests of justice are best served by admitting the evidence.
ii) Limitation:
(1) This is a last resort for courts when the interests of justice demand that the evidence should come in.
iii) Most courts will allow use of 807 to bring in evidence as a “safety net” when other exceptions fail to allow admission of evidence.
iv) Echohawk: You should not be allowed to use 807 to bring in evidence when the evidence clearly fits into another exception and fails at that point. Otherwise 807 swallows the rule by being to general.
How can a party satisfy the sixth amendment confrontation clause against a charge that hearsay violates that right?
i) Ohio v. Roberts (1980): The Confrontation Clause is satisfied if
(1) The prosecution produces the declarant at the trial, or
(2) The prosecution shows the declarant is “unavailable” and that the prior statement bears “indicia of reliability”
(a) Reliability is inferred for a “firmly rooted hearsay exception,” or
(b) Reliability can be established by “particularized guarantees of trustworthiness”
What is 'Testimonial' evidence in a 6th amendment challenge of hearsay?
iii) Testimonial Evidence:
(1) Definition: Statement a reasonable person in the declarant’s position would anticipate being used against the accused in an investigation
(a) Hearsay statements are not testimonial (like excited utterance) (**)
(b) Statements coming from police interrogation are not testimonial if they are given to enable police to meet an ongoing emergency. If the circumstances objectively indicate that there is no emergency, and the primary purpose in gathering the statement is to establish or prove facts for a later criminal prosecution, the statement is testimonial.
When are testimonial/non-testimonial statements admissible after a 6th amendment challenge to hearsay?
ii) Crawford v. Washington (2004):
(1) Testimonial statements from witnesses absent from trial are only admissible if:
(a) The declarant is unavailable, or
(b) The defendant has had a prior opportunity to cross-examine the declarant
(2) Non-testimonial statements are governed by Roberts (reliability/trustworthiness analysis)
What are the reasons behind allowing the 14th amendment due process rights to trump the rules of evidence?
F) Fourteenth Amendment Due Process Right v. Hearsay Rules
I) By denying the use of hearsay evidence or cross-examination, sometimes a defendant’s right to due process is violated and his trial is unconstitutionally conducted.
II) Constitutional due process can trump the rules of evidence when circumstances demand it (e.g. serious life-and-death consequences are considered)
III) The hearsay rule cannot be applied mechanistically to defeat the ends of justice if the testimony is highly relevant to a critical issue and there are substantial reasons to assume its reliability.
When can a party answer the admission of inadmissible evidence with their own inadmissible evidence?
X) FORFEITURE OF OBJECTIONS B) Courts are split on the question of whether inadmissible evidence can be answered with inadmissible evidence. ** C) Admission of evidence is up to the judge’s discretion: i) If the inadmissible evidence admitted is relevant, or irrelevant but materially prejudicial, the opponent of the evidence can answer with their own evidence ii) If the inadmissible evidence admitted is irrelevant and not prejudice-arousing, the court should refuse to hear answering evidence.
What kind of probabilistic evidence is admissible?
A) Probabilistic Evidence
i) Must have a strong basis in mathematics
(1) No mathematical formula can establish BARD that a witness correctly observed and accurately described an event.
ii) Probabilistic blood test evidence can be admissible, especially under statute (e.g. 97.3% accurate paternity test can establish fatherhood in many states by statute)
When can the defense raise character evidence?
(1) 404(a): Character evidence cannot be used to prove that particular conduct occurred, except
(a) Good character of the accused can be raised in a criminal case by the defense, and the prosecution can rebut that evidence
(b) Bad character of an alleged victim can be raised in a criminal case by the defense, subject to Rule 412, and the prosecution can rebut that evidence
(c) Character or credibility of a witness can be attacked under Rules 607-609.
When can a party introduce evidence of other crimes and wrong acts as proof of character?
(2) 404(b): Other crimes and wrong acts are admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident if
(a) The prosecution in a criminal case provides reasonable notice in advance of trial of the general nature of the evidence it intends to introduce at trial, or
(b) The court excuses pretrial notice for the prosecution in a criminal case on a showing of good cause
(i) Motive: Evidence of the past crime that gives a strong basis for motive in the current proceeding
(ii) Plan or common scheme: Evidence shows that the current charge is part of a plan or common scheme by the defendant
(iii) Identity or Pattern: Evidence shows a high degree of similarity to a very peculiar past action, can mark the action as the defendant’s “handiwork”
What methods can be used to prove character?
(3) Methods of Proving Character Rule 405
(a) Reputation and opinion evidence
(i) Specific examples of conduct can be elicited on cross-examination
(ii) Questions about relevant rumors, past arrests, convictions, etc. are also allowed on cross-examination
(b) Specific examples of conduct, when character or a trait of character of a person is an essential element of an offense or defense.
(c) Opposing party can prevent overly prejudicial or confusing evidence under Rule 403.
When is habit evidence admissible?
ii) Habit Evidence Rule 406
(1) Definition: Evidence that a person’s actions are a “regular practice of meeting a particular kind of situation with a certain type of conduct”
(a) Evidence of carelessness in the past cannot prove that someone was careless in a particular instance, but can be used to prove a repetitive pattern of specific behavior
(2) Habit does not have to be corroborated or require the presence of eyewitnesses
(3) Habit should be something that someone does essentially without exception or it will be inadmissible.
When is evidence of a victim's prior sexual behavior admissible? (hint: criminal cases, civil cases, and specific crime civil cases)
C) Alleged Victim’s Past Sexual Behavior or Alleged Sexual Disposition Evidence - Rule 412
i) Evidence of a victim’s prior sexual behavior or predisposition is inadmissible unless:
(1) In a criminal case:
(a) Evidence is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
(b) Evidence is offered by the defense to prove that specific past instances were consensual;
(c) Evidence is offered by the prosecution; or
(d) Exclusion of the evidence would violate the constitutional rights of the defendant
(2) In a civil case:
(a) Evidence is offered to prove the sexual behavior or predisposition of any alleged victim is admissible if it is otherwise admissible under the Federal Rules, and its probative value outweighs the danger of harm to any victim and of unfair prejudice to any party.
ii) Civil Cases Concerning Sexual Assault or Child Molestation - Rule 415
(1) Evidence of prior sexual assault or child molestation is admissible against a civil defendant accused of a sexual assault or child molestation offense.
(2) The evidence must present seriously offensive conduct, like in Rule 413.
(3) Rule 413: A “sexual assault” means a crime under Federal or State law that involved:
(a) Contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person
(b) Contact, without consent, between the genitals or anus of the defendant and any part of another person’s body
(c) Deriving sexual gratification from the infliction of death, bodily injury, or physical pain on another person, or
(d) A conspiracy to engage in any of these kinds of conduct.
What is "subsequent remedial measures" evidence, and why is it inadmissible (and mention any exceptions)?
D) Subsequent Remedial Measures Evidence, Rule 407 i) Definition: Measures taken subsequent to an injury or harm that tend to have made the harm less likely to occur again are inadmissible to prove any kinds of negligence  ii) Exceptions: Admissible when: (1) The evidence is offered for another purpose other than negligence or feasibility of precautionary measures (2) Impeachment of a witness who claims it was safe (3) There would be a limiting instruction on this evidence when given to the jury iii) Justification: To encourage people to fix things and not leave them in a dangerous state
What is "compromise and offers to compromise" evidence, and why is it inadmissible, and when is it admissible?
E) Compromise and Offers to Compromise, Rule 408
i) Common Law: Inadmissible because there is no real show of fault by participating in negotiations for settlement, and to encourage settlement.
ii) FRE:
(1) Prohibited uses:
(a) To prove liability for a disputed claim’s validity or amount, or
(b) To impeach for inconsistent statement or contradiction when it is offered to:
(i) prove an offer or acceptance of valuable consideration in a compromise (must be a legitimate offer for acceptance)
(ii) prove conduct or statements made during compromise negotiations, unless in a criminal case where a public office exercises administrative authority
(2) Admissible uses: Anything not included in the prohibited uses, like:
(a) Proof of a witness’s bias/prejudice
(b) Negation of a contention of undue delay
(c) Proving an effort to obstruct criminal investigation
When is an offer to pay medical expenses inadmissible?
when it is attempting to prove liability for the injury.
What kinds of pleas are inadmissible?
G) Pleas, Plea Discussions, and Related Statements, Rule 410
i) Inadmissible pleas: Pleas of guilty that are withdrawn, pleas of nolo contendre, statements made under FRCrimPro or comparable state procedure
When is liability insurance admissible/inadmissible?
H) Liability Insurance, Rule 411
i) Inadmissible: Evidence that a person was or was not insured against liability is not admissible to prove negligence or other wrongful conduct.
ii) Admissible: To prove another purpose, like proof of agency, ownership, or control, or bias or prejudice of a witness.
When is Similar Happenings evidence admissible?
I) Similar Happenings (Not in FRE)
i) Maybe Admissible: Evidence of similar happenings of an event in the same location is admissible on a case-by-case basis, but its probative value must outweigh 403 concerns.
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