Evidence

Question 1

When evidence be deemed relevant

Answer 1

Evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence.” “Relevant evidence is admissible,” unless it is inadmissible pursuant to some other rule.

Question 2

Hearsay

Answer 2

Hearsay is defined under Rule 801(a) as “an oral assertion, written assertion, or nonverbal
conduct.” Although “assertion” is not further defined, “a favorite [definition] of writers in the
[evidence] field for at least a century and a half [is that] the word simply means to say that
something is so, e.g., that an event happened or a condition existed.”

Federal Rule of Evidence 801(c) defines hearsay as an out-of-court statement that is offered to
prove the truth of the matter asserted.

Question 3

The present sense impression exception to the hearsay rule

Answer 3

Rule 803(1) permits the use of a hearsay statement “describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.”

Question 4

Business record rule

Answer 4

Under Rule 803(6), a business record is a record of an act “made at or near the time by . . .
someone with knowledge” and “the record was kept in the course of a regularly conducted
activity of a business” and “making the record was a regular practice of that activity.”

Question 5

Convictions used as impeachment evidence

Answer 5

Whether convictions should be admitted to impeach generally depends on the nature of the
crime, the amount of time that has passed, and (only in criminal cases) whether the “witness” is
the defendant.

Under Rule 609(a), evidence of prior convictions may be admitted for the purpose of “attacking
a witness’s character for truthfulness.” There are two basic types of convictions that can be
admitted for the purpose of impeachment:

(1) convictions for crimes “punishable by death or by imprisonment for more than one year” (which generally correlates to “felonies”); and

(2) convictions “for any crimes regardless of the punishment . . . if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.”

Question 6

When felony convictions can be excluded/must be admitted

Answer 6

Pursuant to Rule 609(a)(1), in civil cases, the admission of evidence of a felony conviction is
“subject to Rule 403 [which says that a court may exclude relevant evidence if its probative
value is substantially outweighed by other factors].” Rule 403 does not protect the witness against admission of prior convictions involving dishonesty—which must be admitted by the court.

Rule 609(a)(2) provides that evidence of a criminal conviction “must be admitted if the court can
readily determine that establishing the elements of the crime required proving—or the witness’s
admitting—a dishonest act or false statement.”

Question 7

When a conviction more than 10 years old can be admitted as evidence

Answer 7

Federal Rule of Evidence 609(b) contains the presumption that a conviction that is more
than 10 years old, or where more than 10 years has passed since the witness’s release from
confinement (whichever is later), should not be admitted unless “its probative value, supported
by specific facts and circumstances, substantially outweighs its prejudicial effect” and the
proponent has provided the adverse party with reasonable written notice.

Question 8

Felony convictions used to impeach in civil cases

Answer 8

Rule 609(a)(1), the admission of felony convictions to impeach a witness in a civil case is “subject to Rule 403.” Neither Rule 609(a) nor the advisory committee notes specify which factors courts should consider when balancing the probative value of a conviction against the dangers identified in Rule 403 (which include (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, (4) waste of time or undue delay, and (5) needless presentation of cumulative evidence).

Question 9

Cross examination regarding false statements to attack character for truthfulness

Answer 9

Rule 608(b) allows witnesses to be cross-examined about specific instances of prior non-conviction misconduct probative of untruthfulness “in order to attack . . . the witness’s character for truthfulness.”

Question 10

No extrinsic evidence when cross examining about specific instances of misconduct

Answer 10

Although Rule 608(b) allows cross-examination about specific instances of prior misconduct
probative of untruthfulness, “extrinsic evidence” offered to prove such misconduct is not
admissible.

The rationale for this rule is that allowing the introduction of extrinsic evidence of prior misconduct by witnesses, when these acts are relevant only to the witnesses’ truthfulness and not to the main issues in the case, would create too great a risk of confusing the jury and unduly delaying the trial. The court does not have discretion to admit this extrinsic evidence.

Question 11

The Confrontation Clause

Answer 11

The Sixth Amendment of the Constitution gives defendants the right to confront witnesses against them. The use of an out-of-court statement by the prosecutor violates a defendant’s Sixth Amendment rights, even if the statement falls within a hearsay exception, if (1) the statement was “testimonial,” (2) the witness who made the statement is unavailable to testify at trial, and (3) the defendant has not had an opportunity to cross-examine the witness before trial.

Question 12

Testimonial statements

Answer 12

In Crawford, the Supreme Court noted that statements made to police officers in the course of an interrogation are often testimonial. The Crawford Court also suggested that statements that a
witness reasonably believed would be used as part of a criminal prosecution are testimonial.

Question 13

Testimonial statements and the police

Answer 13

In Davis v. Washington, the Court drew a distinction between (1) statements made to the police to assist in the investigation and prosecution, which should be considered testimonial; and (2) statements made to the police to enable them to meet an ongoing emergency, which should be considered nontestimonial. Thus, after Davis, statements to the police “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” are nontestimonial. In Michigan v. Bryant, the Court elaborated on its objective “primary purpose of the interrogation” standard, noting that it requires “a combined inquiry that accounts for both the declarant and the interrogator.” The Bryant Court also set forth a range of factors that might be used to determine the existence of an “ongoing emergency.” These include:
(1) the nature of the dispute,
(2) the scope of the potential harm to the victim,
(3) the threat to additional identifiable victims,
(4) the existence of a more generalized threat to the public,
(5) the suspect’s choice of weapon, and
(6) whether the suspect remained “at large” or had been located (but not yet apprehended) by the police and/or any other “first responders.”

in Ohio v. Clark, the Court reiterated that “the question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an
out-of-court substitute for trial testimony.’”

Question 14

Testimonial statements and affidavits

Answer 14

In Melendez-Diaz v. Massachusetts, the Supreme Court concluded that “affidavits reporting the
results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine” were part of this “core class of testimonial statements.” According to the Court, these affidavits contained the substance of the analysis that the analysts would be
expected to provide at trial, making such affidavits or certified reports the functional equivalent
to testimony.

Question 15

When is a statement admissible despite being an out-of-court statement

Answer 15

The victim’s statement, “That’s the voice of the guy who robbed me,” is an out-of-court statement offered for the truth of the matter asserted. Nonetheless, “[a] statement . . . is not hearsay [when] [t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . identifies a person as someone the declarant perceived earlier.”

Most courts have found that statements identifying a person after hearing the person’s voice
qualify as statements of identification under Rule 801(d)(1)(C). Lay witness voice identification
based on prior familiarity with a voice is typically admissible unless it has been tainted by impermissibly suggestive questioning or investigative procedures. Expert testimony is not normally required.

Question 16

Evidence of a person’s character is not admissible to prove specific conduct on an occasion

Answer 16

In relevant part, Federal Rule of Evidence 404(a)(1) provides that “evidence of a person’s character or a character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”

The testimony is not admissible under Federal Rule of Evidence 404(b)(2), which provides that
evidence of crimes, wrongs, or other acts “may be admissible for another [non-propensity] purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.”

Question 17

When will lay witness evidence be admissible

Answer 17

Under Federal Rule of Evidence 701, lay opinion testimony is admissible if it is “(a) rationally
based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Courts typically hold that witnesses with “firsthand
knowledge” may “offer lay opinion testimony where they have a reasonable basis—grounded
either in experience or specialized knowledge—for arriving at the opinion expressed.”

Question 18

Physician-patient privilege

Answer 18

Under Rule 501 of the Federal Rules of Evidence, “state law governs privilege regarding a claim
or defense for which state law supplies the rule of decision.” The physician-patient privilege,
which was not recognized at common law, has been adopted by statute in most jurisdictions. In
determining whether to honor the assertion of a privilege, “courts must balance the public
interest in nondisclosure against the need of the particular litigant for access to the privileged
information, keeping in mind that the burden of persuasion rests on the party seeking to prevent
disclosure.” In most jurisdictions, patient communications or disclosures made for the purpose of medical diagnosis or treatment are privileged.

Question 19

Habit evidence

Answer 19

Under Federal Rule of Evidence 406, “evidence of a person’s habit . . . may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit.” Typically, under Rule 406, a person’s “habit” is defined as his or her consistent response to a specific situation.

The court may admit habit evidence “regardless of whether it is corroborated or whether there was an eyewitness.” Testimony involving habit evidence may be given by the person with the habit or by another person, but the person testifying must have personal knowledge. It is sometimes difficult for courts to distinguish habit evidence from character evidence. The problem is that, depending on the habit described, habit evidence can be similar to evidence of a person’s character or prior acts.

The Federal Rules of Evidence generally prohibit the use of evidence of a person’s character “to prove that on a particular occasion the person acted in accordance with the character or trait.”

The Rules likewise prohibit evidence of other acts when offered to prove a character trait and
action in conformity with that trait. Because “habit” evidence can run afoul of the bans on
character evidence and prior bad acts evidence, courts generally limit habit evidence to proof of
relevant behaviors that are not just consistent but semi-automatic.

Question 20

Subsequent remedial acts

Answer 20

Federal Rule of Evidence 407 excludes evidence of “measures” a defendant has taken “that would have made an earlier injury or harm less likely to occur.” Such evidence is inadmissible if offered to prove “negligence” or “culpable conduct.” The justification for Rule 407 is twofold. First, the probative value of any subsequent remedial measure as an admission of fault is limited. Second, exclusion fosters “a social policy of encouraging people to take . . . steps in furtherance of added safety.”

The general rule in both state and federal courts is that post-incident discipline constitutes a subsequent remedial measure. More specifically, the termination of employees under similar circumstances is typically viewed as a subsequent remedial measure. For example, in Mahnke v. Washington Metropolitan Area Transit Authority, the court found evidence regarding a bus driver’s termination following an accident with a pedestrian inadmissible as a subsequent remedial measure.

Under Rule 407, evidence of subsequent remedial measures is admissible only if offered “for
another purpose, such as impeachment or—if disputed—proving ownership, control, or the
feasibility of precautionary measures.” Nothing in the facts indicates that these issues will arise.

Question 21

Photographs or handwritten letters can be admitted if authenticated

Answer 21

Under Federal Rule of Evidence 901(a), “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Generally, a handwritten letter can be authenticated by testimony of either a witness with knowledge (e.g., the truck driver’s testimony that he wrote the letter) or testimony from a lay or expert witness identifying the handwriting. Specifically, under Rule 901(b)(2), handwriting can be authenticated by “[a] nonexpert’s opinion that handwriting is genuine, based on familiarity with it that was not acquired for the current litigation.”

Question 22

The best evidence rule

Answer 22

Under the “best evidence” rule, when a party seeks to prove the content of a writing, she must do so by producing the writing itself.

The federal version of the “best evidence” rule is contained in Rule 1002, which provides that “[a]n original writing . . . is required in order to prove its content unless these rules . . . provide[] otherwise.” However, original writings are not always available or extant, so Rules 1003 and 1004 provide widely used exceptions to the “best evidence” rule.

First, under Rule 1003, a duplicate of a document is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity. Second, Rule 1004 allows the contents of writings to be proved by “other evidence” under certain circumstances. One circumstance where “other evidence” is allowed is when “all the originals are lost or destroyed, and not by the proponent acting in bad faith.”

Question 23

Statements against interest exception to the hearsay rule

Answer 23

Second, Rule 804(b)(3) defines the “statement against interest” exception to the hearsay rule as a statement that “a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it . . . had so great a tendency . . . to expose the declarant to civil or criminal liability . . . .”

Question 24

Opposing party statement exception to the hearsay rule

Answer 24

Rule 801(d)(2)(A) provides an exclusion to the rule against hearsay for a statement that “is offered against an opposing party” and “was made by the party in an individual or representative capacity.”

Question 25

Then existing state of mind exception to the hearsay rule

Answer 25

Second, Rule 803(3) contains an exception to the rule against hearsay for, among other things,
“[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan).” In
this case, the restaurant owner’s statement that he would do “whatever it takes to get back some money from this lousy restaurant” is clearly evidence of his desperation as well as his motive or intent to set fire to the restaurant to collect insurance money.

Question 26

When a witness be ‘unavailable’ for trial

Answer 26

Under Rule 804(a)(5), a declarant is “unavailable” as a witness if he is “absent from the trial . . . and the statement’s proponent has not been able . . . to procure the declarant’s attendance or testimony.”

Question 27

Public records exception to the hearsay rule

Answer 27

Rule 803(8) creates a hearsay exception for public records that would, under some
circumstances, authorize the admission of a report of this nature. The hearsay exception for public records covers reports containing “matter[s] observed by law-enforcement personnel” and “factual findings from a legally authorized investigation.” The rationale for this hearsay exception is that public officials, in crafting such reports, typically act “properly and without bias.”

Question 28

Hearsay

Answer 28

The Federal Rules of Evidence define hearsay as “a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Under this definition, an out-of-court statement is hearsay only when it is offered to prove “the truth of the matter asserted in the statement.”

“When conduct or statements . . . are not used to prove the truth of the matter asserted, the statement should generally not be treated as hearsay because it does not fit the literal definition and because under these circumstances the danger of insincerity is usually significantly reduced.”

Question 29

Miranda rights

Answer 29

Typically, a person who is in police custody must first receive Miranda warnings and waive Miranda rights before being subjected to interrogation.

For Miranda purposes, custody is established if a reasonable person under similar circumstances would believe she was not free to leave.

For Miranda purposes, interrogation is established by “either express questioning or its functional equivalent” by the police.

If Miranda has been violated, a court should bar the prosecution from introducing the defendant’s statement during its case-in-chief. However, Miranda warnings are not required for all custodial interrogations. For over three decades, the Court has consistently upheld a public safety exception to the Miranda requirements.

Question 30

Relevance

Answer 30

The custodian’s out-of-court statement to the police officer is relevant because it has a tendency to make a fact (i.e., the time and place of the alleged crime) more probable.

Under the Federal Rules of Evidence, the fact that the custodian is not available to testify has no impact on the application of either hearsay exception.