Cases

Question 1

United States v. Dillion

(6^th Cir. 1989)

General Admissibility

Answer 1

Defendant was charged with drug offence and appealed because court allowed his flight to be admitted as evidence. The Court said the lower court didn’t err.

Four-Step Analysis Regarding Relevance of Flight

1. Defendant’s behavior to flight – defendant left four days after finding out about the charge
2. Flight to conscious of guilt – when a defendant flees soon after hearing that his co-defendant will be testifying against him, that can be considered notice and it’s reasonable to infer guilt
3. Conscious of guilt to conscious of guilt for the crime charged – same as 2
4. Conscious of guilt for the crime charged to actual guilt of the crime – the defendant didn’t contest this.

Question 2

State v. Wisdom

(Mo. 1894)

General Admissibility

Answer 2

Defendant was charged with first-degree murder. There was a superstition that if the murderer touched the corpse, it would bleed. Defendant refused to touch it and objected to its relevance.

• It was relevant under FRE 401 because it had a tiny chance to be probative
• If the defendant didn’t believe in the superstition, it wouldn’t have been probative.

Question 3

People v. Garcia

(Cal. Ct. App. 4^th Dist. 2014)

General Admissibility

Answer 3

A female defendant was charged with sexually assaulting a girl.

• The court said evidence that the defendant was a lesbian should have been inadmissible under FRE 403 because people are prejudice against gay people.
• Professor Nicholas says saying it’s relevant is saying there’s a tiny bit of truth to the idea that a lesbian is more likely to prey on girls and that’s not true. Therefore, it’s not relevant.

Question 4

United States v. Evans

(9^th Cir. 2013)

Conditional Relevance

Answer 4

The defendant was charged with two crimes and his defense to both was that he was a citizen.

• The defendant had a delayed birth certificate (meaning his information wasn’t sent in until a year after he was born) and the prosecution wanted it excluded because it said it was based on fraudulent information. The lower court excluded it.
• The Ninth Circuit said the trial judge erred in not allowing the birth certificate into evidence. Whether it was relevant depended on whether it was based on fraudulent information and that was a fact for the jury to decide.
• The judge erred in making the credibility determination.
• FRE 104(a) and FRE 104(b) tell us how to apply other evidentiary rules

Question 5

United States v. Caldwell (5^th Cir. 2009)

Discretionary Exclusion of Relevant Evidence

Answer 5

The defendant was charged with child porn. The government wanted to use short clips from the videos as evidence. The lower court allowed three clips despite the defendant’s offer to stipulate he had the child porn and transported it across state boarders.

• The lower court said the jury needed to see how horrible child porn is
• The Fifth Circuit affirmed. Unlike Old Chief, the videos were part of a narrative that told a story to the jury rather than evidence that proved an element

Question 6

Kalispell v. Miller (Mont. 2010)

Discretionary Exclusion of Relevant Evidence

Answer 6

The defendant was charged with obstruction of justice because she called the police and told them that her partner’s call was a hoax to protect her partner.

• The government wanted to include evidence that they had a sexual relationship and that proved motive, and the lower court allowed because it would be relevant if it was a man and a woman
• The higher court said it was too prejudicial to allow because people are bias against gay people

Question 7

Campbell v. Keystone Aerial Surveys, Inc. (5^th Cir. 1998)
Discretionary Exclusion of Relevant Evidence

Answer 7

A son committed suicide a year after his father died in a plane crash. The family wanted to use that as evidence of all their mental anguish.

• The lower court excluded the suicide because the judge was afraid the jury would blame the defendant for it. The Fifth Circuit affirmed the lower court’s decision to leave it out because it had a low probative value regarding the family’s mental anguish. (abuse of discretion standard)
• The lower court also excluded photos, videos and oral testimony of how the father’s body was burnt and mangled. The family saw the body. The Fifth Circuit said it wasn’t an abuse of discretion to exclude the photos because seeing them might have caused undue prejudice. However, it should not have excluded the other evidence because it went to mental anguish.

Question 8

Diehl v. Blaw-Knox (3^rd Cir. 2004)

Subsequent Remedial Measures

Answer 8

The plaintiff got hurt because of the defendant’s design flaw in a road widener. A third party made improvements so it wouldn’t happen again.

• The court found the evidence admissible because it wouldn’t hurt the third party.
• The FRE does not override the common law and the common law did not exclude evidence of improvements made by third parties

Question 9

Anderson v. Malloy (8^th Cir 1983)

Subsequent Remedial Measures

Answer 9

The plaintiff was assaulted and raped in a hotel room. Afterwards, the defendant installed chain locks and peep hole.

• The court ruled that evidence of improvement could be used to impeach the defendant and show feasibility. Before the crime, the defendant said he did everything he could to ensure safety but then made improvements afterwards.
• The majority defined feasibility as “the possibility of operation and its costs and convenience, bur also to its ultimate utility and success in its intended performance.”
• The dissent define feasibility as capable of being done. This is the most common definition.

Question 10

Sims v. Great American Life Ins. Co.

10^th Cir. 2006

Subsequent Remedial Measures

Answer 10

A man committed suicide by driving off the road. The jury found it was an accident. The defendant appealed saying the court improperly used the FRE instead of the state rules.

• Erie Doctrine – Federal courts must use state substantive rules in diversity cases that don’t use federal law
• The Erie Doctrine doesn’t apply to the FRE
• In diversity cases and in cases where the federal court is resolving state law issues pursuant to supplemental jurisdiction, the federal court will apply the FRE.
• In resolving the materiality aspect of relevance (401/402) in such cases, federal courts may need to look at state law
• The FRE expressly require federal courts to use state law in the following situations:
  
  • FRE 302 – presumptions in civil cases
  • FRE 413-415 – some definitions in sex law cases
  • FRE 501 – privileges in civil cases
  • FRE 601 – witness competence in civil cases

Question 11

Weems v. Tyson Foods Inc. (8^th Cir. 2011)

Compromise, Offers and Settlements

Answer 11

The plaintiff sued the defendant for employment discrimination. The parties differed in opinion be about the meaning of a document.

• “A dispute exists for Rule 408 purposes so long as there is an actual dispute or difference in opinion regarding a party’s liability for or the amount of the claim.” This can happen even before one of the parties thinks of litigation.
• The plaintiff wanted to enter the document as evidence.
• The district court said he document was inadmissible because it was in dispute. The Circuit Court affirmed because the district court has discretion under FRE 104 to make that decision.

Question 12

United States v. Roti (7^th Cir. 2007)

Compromise, Offers and Settlements

Answer 12

The defendant wanted to use his civil action against his lawyer to show that his lawyer was partially to blame for his bankruptcy fraud. He appealed claiming the district court wrongfully excluded evidence about the settlement.

• The circuit court affirmed
• FRE 408 applies to future civil and criminal cases

Question 13

United States v. Green

(11^th Cir. 2016)

Pleas, Plea Discussions and Related Statements

Answer 13

The defendant claimed his nolo contendere conviction was not admissible under FRE 410.

• A plea is the action of the defendant, whereas a conviction is an action of the court
• While nolo contendere convictions are not barred by FRE 410, under hearsay rules they cannot be used to prove the substance of the underlying acts. So if a party in a subsequent case wants to prove that the defendant engaged in the conduct that led to the nolo contendere conviction, the party must do so using independent evidence of that conduct.

Question 14

United States v. Mezzanatto (1995)

Pleas, Plea Discussions and Related Statements

Answer 14

The defendant waived his FRE 410 rights because the prosecutor said he wouldn’t enter plea discussions without that condition. When the prosecutor used statements from the plea discussions to impeach the defendant, he objected.

• SCOTUS said the evidence rules are “presumptively waivable.” The ability to waive them is an advantage to the defendant, especially if the prosecutor thinks the defendant will lie and so would not otherwise consider plea bargaining.
• Subsequent cases in the lower courts say that the prosecutor cannot only use this evidence to impeach the defendant but also in its case-in-chief as evidence of guilt.

Question 15

State v. Canady

Haw. 1996

Disagreement with Owens

Answer 15

• Similar facts as Owens
• Some states disagree with Owens’s outcome
• HRE 802.1(1) requires a witness to be able to testify about the events so memory matters
• The witness’s testimony was inadmissible

Question 16

Tome v. United States

(1995)

Declarant-Witness’s Prior Statement

Common Law v. FRE 801(d)(1)(B)

Answer 16

• Under the common law, a witness’s consistent prior statement could only be used to rehabilitate the credibility of a witness who was impeached by a charge of recent fabrication or improper influence or motive.
• The FRE added that a witness’s prior consistent statement can be substantial evidence

Question 17

United States v. Reed

7^th Cir. 2000

Opposing Party Statements

Answer 17

The defendant testified at his first trial, which ended in a hung jury. He chose not to testify at his second trial, so the government offered the defendant’s testimony from his first trial into evidence

• The district court found the defendant guilty and he appealed saying his statements were not against his interest
• The Seventh Circuit said the defendant’s statements don’t have to be harmful for the government to admit them as evidence under FRE 801(d)(2)(A)

Question 18

Pau v. Yosemite Park and Curry Co.

9^th Cir. 1994

Opposing Party Statements

Answer 18

The plaintiff’s wife died in a biking accident. The defendant used the plaintiff’s statement that his wife didn’t know how to use a foot break as evidence that they weren’t liable

• The district court allowed the statement and the defendant appealed saying it was hearsay and prejudicial
• The Ninth Circuit affirmed because admissions of a party opponent don’t have to be based on personal knowledge

Question 19

United States v. Ward

7^th Cir. 2004

Adopted Statements

Answer 19

A husband and his wife robbed a bank. The husband entrusted the money to his sister. While they were talking, the defendant’s sister said something about the money and the defendant’s response was silence

• The sister made a deal with the government to testify against the defendant. The defendant objected that he didn’t hear her
• The Seventh Circuit said there were lots of evidence that the defendant heard her so the sister’s statement was excluded from the hearsay rule

Question 20

United States v. Paulino

1^st Cir. 1994

Adopted Statements

Answer 20

The government used a rent receipt to tie the defendant to an apartment involved in narcotics trafficking. The defendant claimed it was hearsay. The district court said it wasn’t hearsay and the First Circuit affirmed because under the possession plus theory, if the circumstances tie the defendant and the receipt together, the defendant can be said to have adopted the receipt. There was other evidence, like the defendant’s name was on the receipt and he had the only key

Question 21

Mahlandt v. Wild Canine Survival and Renewal Center Inc.

8^th Cir. 1978

Authorized Persons on Behalf of a Business

Answer 21

A little boy got hurt from an alleged wolf attack. The defendant’s employee, who didn’t witness the attach, notified Wild Canine via a not to the company’s president and then verbally, and the event was discussed at a board meeting

• The trial judge did not admit the statements because the declarants didn’t have personal knowledge
• The Eighth Circuit said the note and verbal statement were admissible against the defendant and its employee as statements he made. The board meeting minutes were not admissible against the employee because he wasn’t at the meeting, but they were admissible against the company. But FRE 403 justified the trial court’s reasoning

Question 22

Romani v. State

Fla 1989

Conspirator Statements

Answer 22

Florida does not allow judges to look at the hearsay statement when determining whether to admit it. Instead, courts must rely on independent evidence that there was a conspiracy and each member’s participation in it

Question 23

United States v. Yazzle

10^th Cir. 1999

Habit Evidence

Answer 23

The defendants challenged their conviction for second degree murder because the district court restricted the defendants’ use of habit evidence that the victim was a violent man to establish self defense

• The trial court only found that the victim’s act of putting a gun in his belt everyday was admissible habit evidence, while the facts that he picked on weak people, sold stolen goods and did drugs were inadmissible character evidence
• The Tenth Circuit affirmed this decision because habit evidence can be inappropriately used as a back door for proving character evidence. The test to distinguish character evidence from habit evidence involves the number of times the person did something consistently. This gives rise to different opinions, so the evidence admitted was up to the trial court’s discretion.

Question 24

United States v. Krapp

8^th Cir. 1987

Character Evidence

Answer 24

The prosecutor asked the witness whether he knew the defendant and her husband withheld income on her tax return

• The defendant asked for a mistrial because the question was not asked in good faith – the tax return was a draft – and prejudicial
• The trial just instructed the jury to ignore it
• The appellate court said it was prejudicial and an error, but it was a harmless error and so didn’t grant a mistrial

Question 25

United States v. Hewitt

11^th Cir. 1981

Character Evidence

Answer 25

Four witnesses testified to the defendant’s good character and defendant asked for a mistrial because the prosecutor asked if they knew the defendant was about to go to trial for theft in another jurisdiction.

• The prosecutor did it to show how well the witnesses knew the defendant so the court allowed it
• Universally, you can ask character witnesses about anything the defendant has done, except for the current charge being tried

Question 26

State v. Terrazas

Ariz. 1997

Answer 26

In Arizona (and many other states), in order for prior bad acts to be admissible, to protect the defendant against unfair prejudice, there must be clear and convincing evidence that the act occurred and the defendant committed it

Question 27

United States v. Smalls

10^th Cir. 2014

Character Evidence

Answer 27

The defendant’s cellmate died of what seemed like an asthma attack. There was suspicion that the defendant killed his cellmate because five months earlier he threatened to kill his wife in the same way by depriving her of her inhaler

• The government wanted to use this evidence to show a signature quality
• Factors to Examine When Deciding Signature Quality (Not Exhaustive)
  
  • Geographic location
  • Skills needed
  • Distinctive devices
  • Unique traits
• This analysis focuses on the quality of the evidence, not the quantity. So even one really distinctive feature could be enough to show a signature quality
• Because of the willingness to use asthma to cover up the crime and the short time between the attempted assault and the murder, the court allowed the evidence

Question 28

United States v. Miller

7^th Cir. 2012

Character Evidence

Answer 28

The defendant was convicted of possessing drugs with intent to sell, even though he said the drugs were not his.

• The lower court allowed the prosecutor to offer evidence of the defendant’s prior drug conviction and the prosecutor basically use it as propensity evidence disguised as showing intent
• The Seven Circuit said the lower court erred because even though the evidence was used to show intent, the “bad acts evidence was not probative of intent except through an improper propensity inference”
• When doing a 404(b) analysis, the court must decide whether the evidence is offer for a proper purpose and then do a 403 analysis to decide whether its probative value is outweighed by unfair prejudice

Question 29

United States v. Saenz

9^th Cir. 1999

Answer 29

The defendant tried to use evidence that the victim was a violent person to prove reasonable belief for a self-defense defense but the lower court wouldn’t allow it. The Ninth Circuit said the lower court did not err in excluding it. Rule 404(b) does not allow a defendant to introduce evidence that he knew of his victim’s propensity for violence to show the defendant’s state of mind.

Question 30

Schindler v. Seiler

7^th Cir. 2007

Answer 30

The plaintiff sued the defendant for defamation. The plaintiff’s only proof was that a third party told him that the defendant said the plaintiff paralyzed four people

• The district court said it was hearsay. The plaintiff appealed saying he did not offer the statements for truth but to show the statements were made
• The Seventh Circuit affirmed because the third party denied saying anything specific about the defendant’s statements to the plaintiff. The plaintiff could not provide a witness who heard exactly what the defendant said. Therefore, it was hearsay.

Question 31

United States v. Snow

7^th Cir. 1975

Answer 31

The state offered evidence of a case with a red tag with the defendant’s name on it to prove it was the defendant’s. The case had an unregistered gun in it. The defendant said it was hearsay. The Seventh Circuit said it was circumstantial evidence that, along with other evidence, proved the case was the defendant’s.

Question 32

United States v. Serrano

7^th Cir. 2006

Answer 32

The defendant was charged with aiding and abetting distribution of cocaine. The state used his ID, insurance paperwork, and other documents to show the defendant lived in the apartment where the operation took place and thus had knowledge of the operation. The defendant said the documents were hearsay. The Seventh Circuit said the state used the documents as circumstantial evidence to link the defendant to the crime. They were unique identifiers, not hearsay

Question 33

United States v. Pina

S.D. Ohio 2016

Answer 33

The state tried to use a “made in China” label to prove that the defendant was involved with interstate commerce in a federal porn case. The court said the label was hearsay because it asserted the computer was made in China

Question 34

Elmer v. State

Fla. 5^th DCA 2012

Answer 34

A child victim testified that sexual abuse started before her twelfth birthday. The defendant wanted to introduce into evidence a prior statement the victim made to the police that the abuse started after she turned twelve. The court allowed it because it was an inconsistent statement

Question 35

Kenyon v. State

Wyo. 1999

Answer 35

The defendant and his wife took another man’s truck after the wife told the defendant they had permission to. The defendant tried to enter his wife’s statement into evidence.

• The trial court wouldn’t admit it because the judge said it was hearsay
• The trial court erred because the wife’s statement showed the defendant’s state of mind

Question 36

State v. Losson

Mont 1993

Answer 36

The defendant killed her husband. The state offered three statements saying that the defendant would kill her husband. Since the defendant claimed self-defense, her state of mind was important.

• The defendant “threated to kill him in the past” was admitted as circumstantial evidence of state of mind
• The defendant “would kill me if I ever moved out” was admitted as circumstantial evidence of state of mind
• The husband was “afraid of his wife and thought she was going to kill him” was deemed hearsay because it directly proved the husband’s state of mind.

Question 37

Kenyon v. State

Wyo. 1999

Answer 37

The defendant and his wife took another man’s truck after the wife told the defendant they had permission to. The defendant tried to enter his wife’s statement into evidence.

• The trial court wouldn’t admit it because the judge said it was hearsay
• The trial court erred because the wife’s statement showed the defendant’s state of mind

Question 38

Miller v. Dillard’s Inc.

D. Kan. 2001

Answer 38

T5he plaintiffs were detained by someone claiming to be the defendant’s security guard.

• They wanted to use the fact that the security guard showed his badge to show that he was the defendant’s employee and thus the defendant owed the plaintiffs a duty of care.
• By showing his badge the security guard communicated that he was regularly employed as a law enforcement officer
• The statement was hearsay

Question 39

Staddard v. State

Md. Ct. App. 2005

Answer 39

The defendant was charged with murder of a kid. A kid who was with them asked her mom if the defendant was going to “get her” too. The prosecution wanted to admit this as evidence that the kid witnessed the crime and was going to kill her too

• The Maryland court didn’t allow it because it’s a state that deems implied statements as hearsay
• The FRE would allow it because implied statements are excluded from the hearsay rule

Question 40

United States v. Zenni

E.D. Ky. 1980

Answer 40

When government agents were in the defendant’s house they answered the phone and talked with people making bests. The prosecution could use the agents’ testimony as circumstantial evidence because the callers never specifically said the house was being used for gambling. The bettors intended to place bets, not to say that the house was used for gambling

Question 41

Miller v. Keating

3^rd Cir. 1984

Unknown Declarants

Answer 41

• Two witnesses to an accident heard someone say something like, “the bastard tried to cut in.” the trial court let the statement in, and the defendant used it to show the plaintiff was at fault
• The Third Circuit said the trial court should not have let the statement in because the defendant couldn’t establish that the district court had personal knowledge or was excited.

Question 42

Miller v. Crown Amusement Inc.

S.D. Ga. 1993

Unknown Declarants

Answer 42

A trailer hit someone on the side of a highway. An unknown declarant called 911 about eight minutes after the accident because there were no phones in the area. She described the accident in detail. Since it was clear the declarant saw the accident and he call came in about two minutes after a known declarant called, the unknown declarant had personal knowledge. Also, she was deemed to be excited because she had no other reason to note the mile markers.

Question 43

United States v. Boyce

7^th Cir. 2014

Alternative for FRE 803(1) and FRE 803(2)

Answer 43

Since the rationales for FRE 803(1) and FRE 8003(2) are invalid, Judge Posner dissented to suggest a different approach. He said simply that hearsay evidence should be admitted when it’s reliable, when the jury can understand its strengths and weaknesses, and when it will materially enhance the likelihood of a correct outcome

Question 44

State v. Lawrence

La. 1999

Answer 44

The defendant was convicted of rape. He appealed saying the court erred in admitting testimony from two doctors who examined the victim. Louisiana law said statements must be made for the purpose of medical treatment to be admissible. The victim’s statements to her family doctor were admissible because the victim saw him for treatment. The statements to the doctor that the police sent the victim to were not because he examined her only to find evidence.

Question 45

United States v. Renville

8^th Cir. 1985

Statements of Fault Under FRE 803(4)

Answer 45

The defendant raped an 11-year-old girl and objected when the court admitted testimony of statements made to her doctor identifying the defendant as her abuser. The court allowed the statement of fault because the doctor had to treat the girl’s psychological and emotional injuries, and doctors have a legal obligation to remove a child from the environment if she was not protected there. So it was pertinent.

Question 46

United States v. Naiden

8^th Cir. 2005

FRE 802(3)

Answer 46

The defendant was convicted of enticing a child to engage in unlawful sex over the internet. The defendant sought to enter testimony that he told his friend he met someone who claimed to be 14 the defendant didn’t believe she was 14.

• The majority said it was inadmissible as a declaration of a past attitude or state of mind. They were concerned the defendant had time to reflect and misrepresent his state of mind
• The concurrence thought the use of present tense (I do not believe it) showed his state of mind during the conversation with his friend and thought the jury had a right to hear the statement and decide how much weight to give it

Question 47

United States v. Houlihan

D. Mass. 1994

Then-Existing Mental Condition

Answer 47

The government presented evidence that the murder victim told his sister that he was going to meet Herd, a co-defendant, as circumstantial evidence that Herd killed the victim. the court described three ways of applying FRE 803(3) to prove a non-declarant’s future conduct.

• Ninth Circuit – Statements of the declarant’s intent are admissible under FRE 803(3) to prove subsequent conduct of a person other than the declarant without corroborating evidence.
• Second and Fourth Circuits – A declarant’s statement if intent may be admitted against a non-declarant only when there is independent evidence connecting the declarant’s statement with the non-declarant’s conduct
• Florida – Statements of the declarant’s intent are never admissible under FRE 803(3) to prove subsequent conduct of a person other than the declarant. (This is the version in the Report of the House Committee on the Judiciary when FRE 803(3) was adopted).

The court allowed it because of Hillmon and the fact that Congress placed no limitations on FRE 803(3).

Question 48

United States v. Vigneau

1^st Cir. 1999

Business Records

Answer 48

The defendant was part of a drug operation that sold and distributed marijuana and steroids. He was convicted of many related charges, including money laundering. He appealed because he claimed the district court improperly admitted “To Send Money” forms from Western Union that had his name, address and number on them. They corresponded to his counts of money laundering. The First Circuit said since the forms were electronically stored and contained information from the defendant, the district court should not have admitted the forms because the information was from someone outside Western Union.

Question 49

United States v. Vigneau

1^st Cir. 1999

Business Records

Hypos

Answer 49

• If the name had been redacted, the forms could have been used as circumstantial evidence that the money was transferred to others in the operation that would support the charge of money laundering.
• If Western Union had kept the paper forms that had the defendant’s name on them, the court could have identified the handwriting and confirmed the defendant provided the information. Then the government could have entered them into evidence under FRE 801(d)(2)

Question 50

United States v. Oates

2^nd Cir. 1977

Business Records v. Public Records

Answer 50

The defendant was charges with possession of heroin with intent to distribute and conspiracy to commit that crime. He claimed that the trial court erred by admitting into evidence a report that the US Customs Service chemist wrote after analyzing the white powder seized from his co-defendant. The report said the powder was heroin. The Second Circuit said the evidence was not admissible because

• The evidence didn’t meet FRE 803(8) because the report and worksheets were “factual findings resulting from an investigation made pursuant to authority granted by law.” FRE 803(8)(A)(iii) doesn’t allow that to be used against a defendant
• Forensic chemists are “law enforcement personnel” under FRE 803(8)(A)(ii) and their observations can’t be used against criminal defendants
• When a record fails to meet the criteria of the public records exception, it cannot be admitted under the business records exception, even if it meets the criteria, because that does not fit Congress’s intent that the FRE do not clash with the Confrontation Clause.

Question 51

United States v. Muniz-Franco

1^st Cir. 2007

Absence of a Business Record

Answer 51

The defendants were convicted of bank fraud and related offenses. They appealed because they claimed that the district court should not have admitted evidence of matters not in the bank’s board and executive committee meeting minutes to prove that the board was not aware of those matters. Because the minutes were so detailed and were verified many times, the First Circuit said they were properly admitted.

Question 52

United States v. Williams

2^nd Cir. 1991

Out-of-Court Assertion of Privilege

Answer 52

Four men were convicted of a conspiracy that violated narcotic laws. They said they would plead the Fifth if called to testify in court so the district court allowed the prosecutor to admit their guilty pleas as evidence even though they were not present in court.

1. The defendants appealed saying the district court couldn’t find them unavailable without them appearing before the judge
2. The Second Circuit said that although having declarants personally assert the privilege is the preferred practice [because the judge must determine that the privilege is properly asserted], the court may accept the defense attorney’s out-of-court assertion of the privilege to the prosecutor

Question 53

United States v. Kehm

7^th Cir. 1986

Unavailable Due to Refusal to Come

Answer 53

The defendant was convicted of conspiracy to import and distribute drugs. He wanted to present testimony from an alleged co-conspirator who lived in and was a citizen of the Bahamas. The potential witness wouldn’t come to the US so the district court allowed the defendant to depose him in the Bahamas.

• The defendant ended up not wanting to use the deposition as evidence, but the government did and it didn’t make any effort to get the witness to appear. The defendant that the court couldn’t rule that the witness is unavailable when the government didn’t even try to get him to come
• The Seventh Circuit said that while the proponent may not avoid making efforts to procure the presence or testimony on the grounds that those efforts may not work, the proponent is excused from making such efforts if they would be futile

Question 54

United States v. Peterson

2^nd Circuit 1996

Defendant Making Himself Unavailable

Answer 54

The defendant was convicted of being a convicted felon possessing a firearm. He testified at his NYS grand jury trial that he was holding the bag with the firearm for a friend but plead the Fifth at his federal grand jury trial. Instead, he wanted to introduce his testimony from his first trial. He appealed when the trial court wouldn’t admit it

• The Second Circuit said that a defendant who makes himself unavailable cannot use his prior testimony as evidence
• A declarant who asserts a privilege is not unavailable to himself

Question 55

United States v. Carson

4^th Cir. 1987

Unavailable Witness Due to Memory Loss

Answer 55

The defendant was convicted of assault resulting in serious bodily injury. The victim testified at the grand jury trial but couldn’t remember that testimony at trial, even though he tried to refresh his memory by looking at the grand jury transcript.

• The trial court deemed the witness unavailable and allowed the government to read the witness’s grand jury testimony to the jury. The defendant appealed saying there was an insufficient basis showing the witness couldn’t remember and that the witness should have been questioned outside the hearing of the jury to find out if he wasn’t testifying because he was afraid of the repercussions
• The Fourth Circuit said there is no requirement under FRE 804(a)(3) other than the witness saying he can’t remember.

Question 56

United States v. McGuire

9^th Cir. 1986

Unavailable Witness Due to Infirmity

Answer 56

The defendant was part of a fraud conspiracy, and his first trial resulted in a hung jury. A witness was not available to testify because she was 7 months pregnant and he doctor said she shouldn’t travel or testify. The district court allowed the government to admit her testimony from the first trial.

• The defendant appealed because he said the witness’s pregnancy didn’t make her unavailable
• The Ninth Circuit said pregnancy was an infirmity, especially when there its available at doctor’s note saying so. The stress of travel and testifying could cause unforeseen problems
• The court considers factors such as the nature of the infirmity, the expected time of recovery, the reliability of the evidence concerning the infirmity and other special circumstances to determine unavailability due to infirmity

Question 57

United States v. DiNapoli

2^nd Cir. 1994

Prior Testimony of an Unavailable Declarant

Answer 57

Witnesses who testified at a grand jury hearing refused to testify in court, so the prosecutor asked to admit their prior testify. The Second Circuit said (MINORITY VIEW)

• The test of similar motives is not simply whether the questioner takes the same side if the same issue in both proceedings. Rather, it is whether the questioner had a substantial similar interest in asserting that side of the issue.
• If a fact is critical at a second proceeding but was only peripherally related in the first proceeding, the questioner would not have had similar motive
• Dissent (MAJORITY VIEW) – The language of the rule is “similar,” not “substantially similar.” The motives of the parties are similar at the grand jury, preliminary hearing and trial regardless of the fact that each has a different standard of proof.

Question 58

United States v. Angleton

S.D. Tex. 2003

Dying Declarations

Answer 58

The defendant was charged with murdering his wife. He wanted to admit “jail notes” his brother wrote before committing suicide to prove his brother was the murderer. The notes were not admissible because there was no indication that the brother wrote them right before his death and most of their contents were not about the cause or circumstances of his death

• To fall within the dying declaration exception, the statement must be at the time the declarant believes death is imminent
• The court may look at the facts and circumstances surrounding the out-of-court statement to determine whether the declarant made the statement in the belief that death was imminent
• Evidence bearing on the timing may include the nature and extent of the wounds inflicted and the length of time between the making of the statement and the death
• Not every statement under such conditions are admissible. Only statement directly related to the cause or circumstances of the declarant’s death are admissible.
• The defendant argued that by placing the notes in a plastic bag near where he killed himself, the brother was adopting the statements at the time he committed suicide. The court barely addressed this

Question 59

Heddings v. Steel

Pa. Super. 1985

Answer 59

Appellants wanted full custody of their grandchildren and said the trial court erred in admitting evidence that the grandfather had an incestuous relationship with his dead daughter when she was a kid.

• The higher court kept it in. It decided to expand statements against interests to social interests
• This was overturned by the Pennsylvania Supreme Court because social interests are too hard to analyze

Question 60

United States v. Laster

2^nd Cir. 2001

Answer 60

The defendant was convicted of drug offenses. The district court admitted purchase receipts from Wilson Old Company, where the defendant bought the components to make meth, under FRE 804(6) or FRE 807, and let a detective lay the foundation for the receipts. The defendant claimed this was improper because the detective had no personal knowledge. The Second Circuit agreed that the detective had no personal knowledge so FRE 803(6) didn’t apply, but the receipt was admissible under FRE 807 under the “close enough” theory.

Question 61

United States v. Whitmore

D.C. Cir. 2004

Character of Truthfulness or Untruthfulness

Answer 61

The defendant was convicted almost entirely by the testimony of a cop, Soto, so he tried to impeach Soto as being untruthful. The defendant offered three defense witnesses:

• A reporter who said Soto had a reputation for being a liar. The district court struck that down because the reporter didn’t know Soto personally and his information was a few years old. This isn’t a sound argument because you don’t have to personally know a person to know his reputation and information that’s a few years old isn’t old enough to be out of date.
• A defense attorney who would offer reputation and opinion evidence that Solo was a lar. The district court struck that down because the attorney didn’t know everyone in the “court community,” didn’t live in Soto’s neighborhood, and was inherently bias.
• An acquaintance who would offer reputation and opinion evidence that Soto was a liar. The district court struck that down because the acquaintance moved away 5 years before and the court wasn’t even sure Soto was involved in the arrests this witness spoke about

The defendant also wanted to cross-examine Soto about:

• Soto committing perjury. The district court wouldn’t let that in because Soto wasn’t convicted, the jury might put too much weight on it, and it would waste time and confuse the jury.
• Soto’s license being suspended and him not telling his supervisor, which was required. The district court said this was hearsay.
• Soto failing to pay child support. The district court said this was hearsay.

The D.C. Circuit said the district court didn’t err by excluding the character witnesses but it erred by not allowing the cross-examination because each issue questioned Soto’s truthfulness

Question 62

United States v. Manske

7^th Cir. 1999

Specific Instances of Conduct

Answer 62

The defendant was convicted of drug charges. He impeached some witnesses by showing that they received leniency for their testimony. Another witness, Pszeniczka, allegedly threatened witnesses to keep them from testifying at his own trial, and the defendant wanted to impeach him by prior bad acts. The district court wouldn’t allow it. The Seventh Circuit said the district court erred by not allowing the defendant to impeach the witness with prior bad acts. Pszeniczka’s willingness to threaten witnesses at his own trial showed he might testify falsely at the current trial in the hope of receiving leniency, and that’s probative of untruthfulness.

Question 63

United States v. Browne

7^th Cir. 1987

Impeachment by Prior Conviction

Answer 63

The defendant was convicted of robbery based on a past conviction of robbery. This was allowed under FRE 609(a)(1) because

• The defendant had been out of jail for less than a year for his previous robbery conviction
• The defendant portrayed himself as unimpeachable by talking about his good deeds and admitting his past forgery conviction and had an alibi that couldn’t be proved or disproved
• The defendant’s past robbery conviction was the only way the government could impeach him

Question 64

United States v. Cathey

5^th Cir. 1979

Impeachment by Prior Conviction

Answer 64

The defendant was convicted partly based on larceny he committed 16 years before his trial. The Fifth Circuit said the district court erred in admitting the conviction under FRE 609(b) because there were no special circumstances to negate the ban on 10+ year old convictions. The probative value was small because the defendant was impeached in other ways.

Question 65

Fireman’s Fund Ins. Co. v. Thien

8^th Cir. 1995

Impeachment by Bias

Answer 65

After a plane owned by the company that the defendant was director of crashed, the plaintiff tried to show it was not liable for the death of an employee. Two of the defendant’s witnesses were members of his church and so bias for him. The district court allowed evidence that showed the relationship between the defendant and the witnesses but excluded evidence about the tenets of the religion. The Eighth Circuit affirmed because the evidence let in went toward bias and the evidence excluded was not relevant.

Question 66

United States v. Davis

11^th Cir. 2015

Impeachment by Bias

Answer 66

The defendant was convicted based predominantly on testimony of the cop who saw the defendant through his gun out the window and retrieved it after catching the defendant. The defendant appealed based on FRE 610 because the cop was also a chaplain. The Eleventh Circuit said the district court did not err because “chaplain” was just a job title and the government didn’t use it as evidence of credibility.

Question 67

United States v. Pryce

D.C. Cir. 1991

Mental Defects

Answer 67

A government witness had a history of having hallucinations and the defense found out about it. the district court let the defense cross-examine the witness about his hallucinations during the time in which he observed the crime but not those that happen before that. the D.C. Circuit said the trial court abused its discretion and violated the Confrontation Clause. The witness’s past hallucinations built a foundation for questions about his condition during the crime.

Question 68

Types of Mental Illness and Their Effects on Impeachment

Answer 68

There is a difference between mental illnesses that have a psychosis component (hallucinations, delusions, etc.) or a disposition to lie (certain personality disorders, such as antisocial personality disorder) and those that do not. The former may be grounds for impeachment while the latter are not.

Question 69

United States v. Dipaolo

2^nd Cir. 1986

Mental Defects

Answer 69

The trial court did not let the defendant cross-examine a witness about her alcohol abuse. The Second Circuit affirmed, saying her alcohol abuse was irrelevant since she was sober at the time of the crime and when she testified

Question 70

United States v. Boswell

7^th Cir. 2014

Specific Contradiction

Answer 70

The defendant was convicted of being a felon in possession of a firearm. He said he didn’t like guns, and the district court let the government impeach him by asking why he had as tattoo of a gun. The Seventh Circuit said this was proper under FRE 401. The defendant opened himself up to impeachment by testifying. His tattoo could allow the jury to question his credibility, and he had an opportunity to explain why it wasn’t a contradiction

Question 71

United States v. Beauchamp

1^st Circuit 1993

Specific Contradiction

Answer 71

The committed fraud but said a man gave him the check as payment. He claimed that his friend brough the man to him to buy a car. His friend testified for the government saying the defendant told him he was in trouble about a check. The defendant tried to impeach the government’s witness by getting a landlady to say the witness didn’t live where he claimed to live. The district court didn’t allow it because where the witness lived was a collateral matter and you can’t use extrinsic evidence to prove collateral matters.

Question 72

United States v. Ince

4^th Cir. 1994

Witness’s Prior Inconsistent Statement

Answer 72

The defendant was convicted at his second trial based on an eyewitness who couldn’t remember telling the police that the defendant fired shots, and the cop testified about what she told him. This same evidence was presented at the defendant’s first trial. The government used the cop’s testimony for two purposes: to impeach the witness by saying she told the cop that the defendant shot the gun and as the only evidence that tied the defendant to the shooting. The Fourth Circuit said the district court erred by allowing the evidence in based on FRE 403. The evidence had no probative value – the defendant confessed – and was highly prejudicial.

Question 74

Ricketts v. City of Hartford

2^nd Cir. 1996

Voice Identification

Answer 74

The plaintiff sued for police brutality and wanted to admit a recording of the cop that supported the claim. The district court didn’t allow it because the judge wasn’t convinced it was the cop. The Second Circuit said the district court in excluding the evidence because the district court’s job was to screen it to see if a rational jury could find the voice was the cop’s.