EVIDENCE

Question 1

ISSUE: Is a mechanic’s testimony describing his opinion of the condition of truck brakes that he has inspected admissible evidence? ANSWER: Yes. The mechanic’s testimony about the condition of the brakes is relevant and should be admitted either as lay opinion rationally based on the mechanic’s personal perception or as expert opinion because the mechanic possesses the necessary technical knowledge to be qualified as an expert witness.

Answer 1

Evidence is relevant if it has “any tendency to make a fact more probable or less probable than it would be without the evidence.” The mechanic’s testimony (“I inspected [the woman’s] truck a week before the accident. The brakes on the truck were worn and in need of repair. I ordered new parts.”) is relevant because it tends to make it more probable that a brake malfunction may have caused the accident.
The mechanic’s testimony is admissible opinion evidence. 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.” Here, the mechanic’s opinion is rationally based on his personal perception and would be helpful to the jury’s determination of whether the woman or the man caused the accident. A court could also find that because the mechanic’s opinion is based on his personal perception, it is not an expert opinion within the scope of Rule 702. In the alternative, the mechanic may be qualified as an expert based on his technical skill or specialized knowledge. Under Federal Rule of Evidence 702, the mechanic’s expert opinion can be admitted if “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based upon sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Here, a court could find that the mechanic used his technical skills to reliably form the opinion that the woman’s truck brakes required repair, making the opinion testimony admissible under Rule 702, but not Rule 701.
Regardless of whether the mechanic’s testimony is viewed by the court as lay or expert opinion, it should be admitted.

Question 2

ISSUE: Is an invoice for truck brake parts an admissible business record when it was apparently made by a person with knowledge of its contents and retained in the ordinary course of business? ANSWER: Yes. The receipt from the mechanic’s shop is a relevant out-of-court statement that should be admitted because it fits the hearsay exception for business records.

Answer 2

The receipt from the mechanic’s shop stating “New parts for [the woman’s] truck brakes ordered on December 23 and received on January 2” is relevant because it has some tendency to make it more probable that the woman’s truck brakes were, in fact, in need of repair and may have malfunctioned, causing the accident.
The receipt is hearsay under Federal Rule of Evidence 801 because (1) it is a statement (the mechanic’s “written assertion” that new brake parts were ordered); (2) the mechanic made the statement out of court; and (3) the statement will be “offered in evidence to prove the truth of the matter asserted in the statement.” However, the receipt fits the hearsay exception for “business records.” Under Rule 803(6), a business record may be “a record of an act, event or condition” made “by someone with knowledge, if kept in the course of a regularly conducted activity of a business, and if making the record was a regular practice of that activity.” These facts must be shown by the testimony of the custodian of the record or another qualified witness.
Here, the mechanic was a person with knowledge because he ordered the truck brake parts, as he will testify. The fact that the receipt was written and signed by the mechanic and kept in the mechanic’s file cabinet among similar receipts for other customers should establish that the mechanic was the custodian of the receipt and that it was made and kept by the mechanic in the ordinary course of his repair business. But the receipt will be admissible only if these facts are established during examination of the mechanic.

Question 3

Is a patient’s out-of-court statement regarding pre-existing pain admissible as a statement by an opposing party when the patient is the plaintiff in a personal injury lawsuit or admissible under the hearsay exception for statements made for the purpose of medical diagnosis or treatment? ANSWER: Yes. The doctor’s proposed testimony would repeat an out-of-court statement by the woman, but the woman’s statement is admissible because (1) it is a statement by an opposing party and is therefore not hearsay, or (2) it fits the hearsay exception for statements made for medical diagnosis or treatment.

Answer 3

The doctor’s proposed testimony that the woman said, “I have suffered from painful arthritis in my neck for the past five years,” is relevant because it has some tendency to make it less probable that the accident caused the onset of the woman’s neck pain.
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. However, most jurisdictions currently recognize a range of exceptions intended to prevent the privilege from being used as a shield for fraud. These exceptions apply in any proceeding where the patient relies on a physical condition as an element of his claim or defense. Thus, in many states a patient waives the physician-patient privilege by placing her medical condition “in issue” in a personal injury lawsuit.
The woman should not be able to invoke the physician-patient privilege to bar admission of the doctor’s statement. She will be deemed to have waived the privilege by seeking damages for her neck pain, which put the question of the cause of that pain into issue in the lawsuit.

Question 4

ISSUE: Is a patient’s out-of-court statement regarding pre-existing pain admissible as a statement by an opposing party when the patient is the plaintiff in a personal injury lawsuit or admissible under the hearsay exception for statements made for the purpose of medical diagnosis or treatment? ANSWER: Yes. The doctor’s proposed testimony would repeat an out-of-court statement by the woman, but the woman’s statement is admissible because (1) it is a statement by an opposing party and is therefore not hearsay, or (2) it fits the hearsay exception for statements made for medical diagnosis or treatment.

Answer 4

The doctor’s statement, which repeats an out-of-court statement by the woman (that she had suffered from painful arthritis in her neck for the past five years), is admissible for the truth of the matter asserted and is not hearsay. When offered by the defendant (the man), it is an opposing party’s statement because the declarant is the plaintiff (the woman).
In the alternative, the woman’s statement, which describes the onset and nature of her neck pain, describes her “medical history” and provides information about her “past or present symptoms or sensations; their inception; or their general cause.” Under these circumstances, the woman’s statement is also admissible under the hearsay exception for statements made for medical diagnosis or treatment.

Question 5

ISSUE: Is the roommate’s testimony admissible habit evidence? ANSWER: Yes. The court may admit testimony by the roommate if it decides that the man’s constant texting is a habit. A court might rule either way.

Answer 5

The roommate’s testimony (“[The man] is addicted to texting and never puts his phone down. He even texts while driving.”) is relevant because it has some tendency to make it more probable that the man was texting at the time of the accident.
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.
Here, it is a close question whether the roommate’s testimony is admissible habit evidence or prohibited character evidence. According to the advisory committee notes to Rule 406, a habit “is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct.” The roommate would testify that texting is the man’s constant and consistent practice. But as noted above, many courts also require that the behavior be semi-automatic in order to be admissible as habit evidence, and texting may be too volitional to be considered a semi- automatic habit.
 

Question 6

%] ISSUE: Is a victim’s out-of-court statement admissible when offered not to prove the truth of the matter asserted in the statement, but solely because it is relevant to prove the criminal defendant’s reasonable fear of the victim? ANSWER: Yes. The court should admit testimony from the woman repeating the man’s out-of-court statement to the woman (“I promise you’ll be happy if you take me back, but very unhappy if you do not.”) because it is relevant to prove the woman’s reasonable fear of the man and is not hearsay.

Answer 6

Here the man’s statement to the woman is relevant because it has a tendency to make a fact (i.e., the woman’s reasonable fear of the man) “more probable than it would be without the evidence.” The woman’s fear of the man is essential to her self-defense claim under the State A standard because she must prove that when she shot the man, she “reasonably believed” that her use of force was “immediately necessary for the purpose of protecting herself against the use of unlawful force by another person.” Like all criminal defendants, the woman has a due process right to present a defense, and the defense seeks to use the man’s statement to substantiate her self-defense claim.
Although the man’s statement was made outside of court, it would not be hearsay if offered to prove the woman’s reasonable fear. 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.” 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.
Here, the man’s out-of-court statement is relevant to assessing the reasonableness of the woman’s fear regardless of whether the jury believes that the man’s statement is true. Specifically, the jury does not need to decide whether the man actually would have made the woman “happy” or “unhappy” to conclude that her fear of the man was reasonable. Accordingly, when offered by the defense, this statement should be admitted.

Question 7

ISSUE: Does admission of a criminal defendant’s out-of-court statement to a police officer, taken during custodial interrogation and without Miranda warnings or a waiver of Miranda rights by the defendant, fit the well-established Miranda public safety exception when the police officer asked a single question to secure weapons immediately after a shooting? ANSWER: Yes. The court should find that the police officer did not violate the woman’s Miranda rights by asking her “Do you have any other weapons?” before providing Miranda warnings and obtaining a waiver because this fits the well-established Miranda public safety exception.

Answer 7

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.
Here, the police officer engaged in custodial interrogation without first giving the woman Miranda warnings. The woman was in custody because a reasonable person would have not felt free to leave her office after she had shot someone, two police officers had arrived to investigate and had seized her gun, and one of the officers had blocked her doorway. The woman was under interrogation because the police officer asked her a direct question. However, limited interrogation without Miranda warnings, when intended to protect public safety, fits the Miranda public safety exception. Here, the police officer asked a single question about additional weapons intended to secure his own safety and the safety of the people gathered nearby. Thus, the court should find that the police officer did not violate the woman’s Miranda rights.

Question 8

ISSUE: Is a criminal defendant’s out-of-court statement offered by the prosecution admissible as an opposing party’s statement because it is not hearsay? ANSWER: Yes. The court should admit testimony from the police officer repeating the woman’s out-of-court statement (“I have a can of pepper spray in my purse. Is that a weapon?”). The statement is relevant, and it is not hearsay because it is an opposing party’s statement.

Answer 8

The woman’s statement is relevant to the prosecution’s case because it could help the prosecution prove that, when the woman shot the man rather than using her pepper spray, she used greater force than was “immediately necessary for the purpose of protecting herself against the use of unlawful force” under State A self-defense law.
The woman’s statement is not hearsay when offered by the prosecution. Out-of-court statements by a party are not hearsay if “offered against an opposing party and made by the party in an individual capacity.”

Question 9

ISSUE: Under what circumstances is a witness’s out-of-court statement admissible under the present-sense-impression or excited-utterance exceptions to the hearsay rule? ANSWER: The court should find the testimony from the police officer repeating the custodian’s out-of-court statement (“I didn’t see the shooting, but I heard some noises in the hall around 10 and then a loud bang and screaming.”) relevant. The court might find that the statement meets either the present-sense-impression or excited-utterance exception to the rule against hearsay.

Answer 9

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. If this statement is offered for these purposes, it is hearsay; but it should be admitted because it fits within at least one hearsay exception.
The custodian’s statement might fit the hearsay exception for “present sense impressions” because it is “a statement describing or explaining an event made immediately after the declarant perceived it.” Here, the custodian’s statement was limited to a description of recent events, and the statement was made to the police officer 20 minutes after the events occurred. Whether 20 minutes is close enough in time to the event to qualify under this exception, however, is unclear.
The custodian’s statement also may fit the hearsay exception for “excited utterances,” if the court concludes that it is “a statement relating to a startling event made while the declarant was under the stress of excitement that it caused.” Here, the facts support use of this exception if the court finds (1) that the custodian was startled by hearing the gunshot and scream and (2) that he remained “under the stress of excitement” 20 minutes later when he was interviewed by the police officer.
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 (all FRE 803 hearsay exceptions apply “regardless of whether the declarant is available as a witness”). In addition, the fact that the custodian heard but did not see the relevant events has no bearing on the admissibility of his statement.
[NOTE: An examinee’s conclusion is less important than his or her reasoning on whether the statement comes in under either exception.]

Question 10

ISSUE: Did the admission of the officer’s testimony that the defendant started crying violate the defendant’s Miranda rights? Was this evidence inadmissible hearsay? ANSWER: No. The officer’s testimony that the defendant started crying did not violate the defendant’s Miranda rights because crying is not testimonial/communicative evidence and the defendant was not in custody when he burst into tears. This testimony is not hearsay because crying is not a statement.

Answer 10

The trial court properly permitted the officer to testify that the defendant began crying after she asked him, “Did you rob Jo-Jo’s Bar last night?” The testimony did not violate Miranda, because crying is not the type of compelled communication or testimony protected by the privilege against self-incrimination. Miranda has consistently been interpreted to protect only testimonial/communicative evidence. Here, the defendant’s crying would not be considered a testimonial communication. In order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.
Moreover, Miranda protections apply only when a suspect is both in custody and under interrogation. The defendant was under interrogation because the officer had asked him a direct question (interrogation is defined as either express questioning or its functional equivalent). But for Miranda purposes, custody can only be established if a reasonable person under similar circumstances would believe that she was in custody. Here, when the defendant burst into tears, he was not entitled to Miranda protections, as he was not in custody because a reasonable person who had just voluntarily admitted a police officer into his home would not believe that he was in custody. For example, in one case, a daytime interrogation in the suspect’s home by several government agents was not viewed as custody without a more “significant” deprivation of the suspect’s freedom of action.
Finally, crying does not raise hearsay concerns because it is not a statement. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted in the statement.” Here, the defendant burst into tears, but did not assert or communicate anything while he was crying.

Question 11

ISSUE: Was the officer properly permitted to read her handwritten notes to the jury? ANSWER: Yes. The notes made by the officer are hearsay, but the officer was properly permitted to read the notes to the jury as a recorded recollection. Statements by the defendant contained in the notes are nonhearsay opposing-party’s statements.

Answer 11

The trial court properly permitted the officer to read her notes to the jury. The document containing the officer’s notes is hearsay because it is an out-of-court statement that is “offered in evidence to prove the truth of the matter asserted in the statement.” However, the notes are admissible under the hearsay exception for recorded recollections. A recorded recollection is “a record that is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately and was made when the matter was fresh in the witness’s memory.” The officer’s notes are a recorded recollection because the officer, who once had knowledge of the contents of those notes, prepared them herself but had insufficient recollection of the events they described to testify fully and accurately at trial regarding those matters.
The Federal Rules of Evidence also permit the use of a writing, such as the notes, to refresh a witness’s recollection for the purpose of testifying. Here, the prosecutor’s effort to use the notes to refresh the officer’s recollection was not successful because even after reading the notes, the officer still had insufficient recollection to enable her to testify fully and accurately. However, the officer also testified that she remembered making the notes and that she was careful to write the notes correctly. Thus, the court properly admitted the notes into evidence and permitted the officer to read them to the jury.
The notes themselves recount additional out-of-court statements made by the defendant (a second level of hearsay), but these statements are deemed nonhearsay by the hearsay exception for out-of-court statements by opposing parties.

Question 12

ISSUE: Were the officer’s notes properly received into evidence as an exhibit? ANSWER: No. The trial court erred by receiving the officer’s notes as an exhibit.

Answer 12

Although the officer’s notes fit the hearsay exception for recorded recollections, under this exception “if admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.” Here, the notes were used by the prosecutor and offered as an exhibit by the prosecutor, not by an adverse party. Therefore, it was error for the court to admit them as an exhibit.
[NOTE: The officer’s notes are not admissible under the hearsay exception for public records under Federal Rule of Evidence 803 because the rule specifically exempts statements by law enforcement personnel when offered in a criminal case.]

Question 13

ISSUE: Did the admission of the officer’s testimony recounting the defendant’s statement “I was there on November 30 and saw the robbery, but I had nothing to do with it” violate the defendant’s Miranda rights? Was this evidence inadmissible hearsay? ANSWER: No. The admission of the officer’s testimony recounting the defendant’s December 20 statement “I was there on November 30 and saw the robbery, but I had nothing to do with it” did not violate the defendant’s Miranda rights because, following the defendant’s second invocation of his right to counsel of December 1, the defendant was released from interrogative custody for 19 days. This testimony is nonhearsay because it is an opposing-party statement.

Answer 13

As discussed in Point Four, on December 1 the defendant received Miranda warnings from the officer, invoked his right to counsel by saying “Get me a lawyer,” initiated communication with the officer, received a fresh set of Miranda warnings, waived his rights, made a statement, and then re-invoked his right to counsel by saying, “Forget it – I want my lawyer.” Following the defendant’s second invocation, he was provided with counsel and released. He was not questioned again until more than two weeks later, when he was arrested and given fresh Miranda warnings.
The Supreme Court has concluded that if a suspect has been released from interrogative custody, the police obligation to honor an invocation of the Miranda right to counsel terminates after 14 days. Although the defendant invoked his right to counsel on December 1 by saying “Forget it – I want my lawyer,” that earlier invocation by the defendant of his right to counsel was no longer binding on the officer when she re-arrested the defendant on December 20.
On December 20, the officer properly provided the defendant with new Miranda warnings.
The defendant waived his rights and made a voluntary statement to the officer. Admission of the statement into evidence did not violate the defendant’s constitutional rights. Moreover, the statement is not hearsay because it is a statement by an opposing party.
 

Question 14

ISSUE: Did the admission of the officer’s testimony recounting the defendant’s statement “I have some information that can really help you with this case” violate the defendant’s Miranda rights? Was this evidence inadmissible hearsay? ANSWER: No. The admission of the officer’s testimony recounting the defendant’s statement “I have some information that can really help you with this case” did not violate the defendant’s Miranda rights because the defendant initiated communication with the officer. This testimony also is not hearsay because it is an opposing-party statement.

Answer 14

The trial court properly permitted the officer to testify recounting the defendant’s statement “I have some information that can really help you with this case.” On December 1, the officer provided the defendant with Miranda warnings and the defendant invoked his right to counsel by stating, “Get me a lawyer.” After the defendant’s invocation of his right to counsel, the officer was required to cease the interrogation. Here, the officer immediately stopped the interrogation.
However, if a custodial suspect who has invoked his right to counsel initiates post-invocation communication with the police, the suspect’s subsequent statements may be admissible. Although a suspect’s questions/comments “relating to routine incidents of the custodial relationship” will not be treated as initiation of communication with the police, statements from a suspect that clearly indicate a willingness to speak to the police about matters relating to the investigation will be treated as initiation of communication.
Here, when the defendant said, “I want to make a deal; I think I can help you,” he was clearly initiating communication with the officer. Following this initiation of communication by the defendant, the officer properly provided new Miranda warnings and obtained a waiver of rights. Admission of the defendant’s subsequent statements did not violate his constitutional rights.
Finally, although the defendant’s statement was made out of court because it was made by the defendant and offered by the prosecutor against the defendant, it is an opposing-party statement and not considered hearsay.

Question 15

ISSUE: Does admission of a non-testifying witness’s out-of-court statement, provided in response to police questioning just minutes after viewing the crime, violate the Confrontation Clause of the Sixth Amendment? ANSWER: Whether admission of the police officer’s testimony repeating the witness’s description of the robber violated the Confrontation Clause depends on whether the objective primary purpose of the interrogation was to assist the police to resolve an ongoing emergency or to assist in the investigation and prosecution of the crime. Here, the facts support reasonable arguments either way.

Answer 15

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.
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 an objective witness reasonably believed would be used as part of a criminal prosecution are testimonial.
Two years later, 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.”
Finally, in Ohio v. Clark, a 2015 case, the Court reiterated that “the question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out-of-court substitute for trial testimony.
Here, the witness’s out-of-court statement to the police officer could be viewed as nontestimonial because it was made under emergency circumstances. A robbery had recently occurred, the dispute was not private, the suspect was apparently armed, he may have posed a threat to other victims and/or the general public, and he was still “at large.” Under these circumstances, the “primary purpose of the interrogation,” from the perspective of the reasonable declarant and the interrogator, could have been to assist the police to resolve an ongoing emergency. If the statement is deemed nontestimonial, its admission would not violate the Confrontation Clause.
On the other hand, there are facts that suggest that the witness’s statement was testimonial. The witness provided the robber’s identity in response to police questioning about a crime, the robber was no longer present at the scene, and there was no clear ongoing emergency insofar as the witness was concerned. Based on these facts, the judge could conclude that the objective “primary purpose of the interrogation” was to assist in the investigation and prosecution of the robbery. Because the witness was not available to testify and the defendant had no prior opportunity to cross-examine the witness, if the statement were deemed testimonial, its admission would violate the Confrontation Clause.
The facts support reasonable arguments either way on this issue.

Question 16

ISSUE: Is an out-of-court vocal identification of a defendant inadmissible hearsay? ANSWER: No. The victim’s statement “That’s the voice of the guy who robbed me” is admissible as an out-of-court statement of identification.

Answer 16

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 the 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.
Here, because the victim testified at trial and could have been recalled and cross-examined concerning his out-of-court statement, the statement was correctly admitted under Rule 801(d)(1)(C) as a statement of identification.
The victim’s statement is not hearsay under the rules, so it need not fit any of the hearsay exceptions to be admissible. However, credit could be given to examinees who conclude that the victim’s statement falls within the hearsay exception for an excited utterance or a present sense impression. The victim’s statement was arguably an excited utterance because it was made in response to an event (the victim hearing the defendant’s voice) that was evidently “startling” to the victim, it occurred close in time to the event, and the victim was “under the stress” of the excitement of the event when making the statement.
Similarly, the victim’s statement was a present sense impression: it described an event (hearing “the voice of the guy who robbed me”) and was made immediately after the event.

Question 17

ISSUE: Can the prosecutor introduce testimony that a criminal defendant was a known drug dealer who had been hanging around for six months constantly causing trouble? ANSWER: No. The police officer’s testimony that the defendant was a “known drug dealer who had been hanging around in the area where the jewelry store is located for six months before the robbery, constantly causing trouble” is inadmissible character evidence.

Answer 17

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. Here, the only apparent purpose of the police officer’s testimony is to impugn the defendant’s character and suggest that he is the sort of person who would commit a robbery.
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. It is unlikely that the police officer’s vague reference to the defendant’s “constantly causing trouble” would be considered evidence of other crimes, wrongs, or acts under Rule 404(b).
Even in the unlikely event that the judge concluded that a vague reference to causing trouble was evidence of other crimes, wrongs, or acts, this evidence does not support any relevant non-propensity issue. For example, some courts have allowed prosecutors to admit evidence of a defendant’s drug habit to establish the motive for a crime (i.e. to prove that a defendant needed to acquire money to purchase more drugs). Here, there is no indication that the defendant had a drug habit or that his previous behavior provided a motive for this robbery.
 

Question 18

ISSUE: Under what circumstances can evidence of prior convictions be used to impeach a witness’s credibility in a civil case? ANSWER: The Federal Rules of Evidence permit impeachment of witnesses with evidence of prior convictions.

Answer 18

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, 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.”
Pursuant to Rule 609, 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].” However, Rule 403 does not protect the witness against admission of prior convictions involving dishonesty – which must be admitted by the court.
Finally, Federal Rule of Evidence 609 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 19

ISSUE: May the inmate’s credibility be impeached by evidence of a 12-year-old felony drug conviction, if he was released from prison 9 years ago? ANSWER: Yes. The court should admit evidence of the inmate’s 12-year-old felony marijuana distribution conviction.

Answer 19

The inmate’s conviction for marijuana distribution was for a felony punishable by imprisonment for more than one year. Moreover, although the conviction was 12 years ago, the 10-year time limit of Rule 609 is not exceeded because that time limit runs from the date of either “the witness’s conviction or release from confinement for it, whichever is later.” Because the inmate served three years in prison, he was released from confinement nine years ago.
However, pursuant to Rule 609, 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).
In this case, credibility is very important because the evidence consists primarily of the testimony of the disputing parties and there were no other eyewitnesses to the altercation. This enhances the probative value of any evidence bearing on the inmate’s credibility. A court is likely to conclude that the inmate’s prior felony drug conviction is relevant to his credibility. For example, prior drug-trafficking crimes are generally viewed as having some bearing on veracity. Although the probative value of any conviction diminishes with age, the inmate’s ongoing problems with the law suggest that he has continued (and even escalated) his criminal behavior over the past nine years. The court should admit this evidence because its probative value is not substantially outweighed by any Rule 403 concerns. Specifically, any prejudice to the inmate would be slight because the conviction is unrelated to the altercation at issue and the conviction was not for a heinous crime that might inflame the jury.
[NOTE: Whether an examinee identifies the jury instruction as containing a “conclusive” or “mandatory” presumption is less important than the examinee’s analysis of the constitutional infirmities

Question 20

ISSUE: May the inmate’s credibility be impeached by evidence of an 8-year-old misdemeanor perjury conviction that was punishable by 1 year in jail, if he pleaded guilty and was sentenced only to pay a $5,000 fine? ANSWER: Yes. The court must admit evidence of the inmate’s eight-year-old misdemeanor conviction because perjury is a crime of dishonesty.

Answer 20

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.” The inmate’s conviction for perjury would have necessarily required proving that the inmate engaged in an act of dishonesty. This conviction occurred within the past 10 years, so it “must be admitted” because, in contrast to Rule 609(a)(1), admission under Rule 609(a)(2) is mandatory and not subject to Rule 403.

Question 21

ISSUE: May the inmate’s credibility be impeached by evidence of a 7-year-old sexual assault conviction if the inmate is still serving a 10-year prison sentence and the victim was his 13-year-old daughter? ANSWER: No. The court should exclude evidence of the inmate’s seven-year-old felony sexual assault conviction because the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. In the alternative, the details of the prior conviction could be excluded.

Answer 21

The inmate’s conviction for felony sexual assault was seven years ago, and he has not yet been released from incarceration, so Rule 609(a) but not 609(b) is applicable here. This conviction is therefore admissible to impeach the inmate, unless its probative value is substantially outweighed by the danger of unfair prejudice or any other Rule 403 concern. Sex crimes are generally not considered relevant to credibility, so the probative value of this conviction is relatively low. Moreover, the heinous nature of the inmate’s crime (sexual assault on his daughter) makes the danger of unfair prejudice to the inmate very high. Thus, the court should exclude evidence of the conviction because it was for a heinous offense that is likely to inflame the jury and it has little bearing on credibility.
As an alternative to excluding this evidence, the judge could minimize the unfair prejudice to the inmate by permitting limited cross-examination but refusing to allow specific questions about the nature of the inmate’s conviction. For example, a court could limit cross-examination to the fact that the inmate was convicted of a “felony” or perhaps that he was convicted of a “sexual assault” without identifying the victim. However, because evidence of the inmate’s prior convictions can be admitted solely for the purpose of enabling the jury to assess his credibility and because his two earlier convictions should have already been admitted, the court should exclude all evidence of the felony sexual assault conviction

Question 22

May the guard’s credibility be impeached by cross-examination regarding specific instances of misconduct (i.e., lying on his résumé) relevant to credibility? ANSWER: Yes. The court should permit the inmate’s counsel to cross-examine the guard regarding the false statement in his résumé because the guard’s misconduct bears on his truthfulness.

Answer 22

The inmate wishes to cross-examine the guard about his prior dishonest behavior – lying on his résumé – that did not involve a criminal conviction. Rule 608 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.”
The court’s decision to allow cross-examination about the guard’s prior dishonest behavior depends on the probative value of such evidence balanced against the danger of unfair prejudice to the guard or any other Rule 403 concern. Here, the guard’s false statement on his résumé that he obtained a degree in Criminal Justice is highly probative of his untruthfulness because it grossly misrepresents his actual academic record, was made recently, and was made with the intent to deceive. Because the probative value of this evidence is very strong and is not substantially outweighed by any Rule 403 concerns, cross-examination of the guard on this topic should be permitted. The court may also consider it fair to permit this cross-examination of the guard on these matters, assuming that one or more of the inmate’s prior convictions have been admitted to impeach his credibility.

Question 23

ISSUE: May the guard’s credibility be impeached by admission of extrinsic evidence (his résumé and academic transcript) offered to prove specific instances of misconduct relevant to credibility? ANSWER: No. The court should exclude extrinsic evidence of the guard’s non-conviction misconduct, even if the guard denies wrongdoing or refuses to answer questions about the matter.

Answer 23

Although Rule 608 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.
Here, the inmate’s counsel may cross-examine the guard about the false statement on his résumé. However, the inmate’s counsel must accept the guard’s response. Even if the guard denies wrongdoing or refuses to answer questions about the matter, the inmate’s counsel cannot introduce the guard’s résumé or the transcript from the local college to prove the guard’s misconduct.
 

Question 24

ISSUE: May a witness who testifies to a lack of memory at trial be impeached with a prior inconsistent statement, and may extrinsic evidence of the prior inconsistent statement be admitted? ANSWER: Yes. A prior inconsistent statement is ordinarily admissible for the purpose of impeaching the credibility of a witness. Extrinsic evidence of the prior statement, such as the written statement itself, may be admitted when the witness has been given an opportunity to explain or deny the statement.

Answer 24

It is generally permissible for a litigant to impeach the credibility of any witness, including a witness called by that litigant. Moreover, it is common and proper to impeach a witness’s credibility “by showing that the witness has made prior statements inconsistent with his or her testimony at trial.”
In order to introduce a prior out-of-court statement to impeach a witness’s credibility, there must be an inconsistency between the prior out-of-court statement and the witness’s trial testimony. The inconsistency must involve a relevant issue. If a witness testifies to a lack of memory regarding a relevant issue contained in a prior out-of-court statement, the judge may find that this testimony is inconsistent with the out-of-court statement on the same issue. Moreover, if the judge finds that the lack of memory is feigned, the court is more likely to find that the testimony and statement are inconsistent. Here, there is more than a claimed lack of present memory concerning the facts. Witness testified that she had never seen Defendant in her life and denied that she had told Police Officer that she saw Defendant rob Victim. Thus, her trial testimony is inconsistent with her previous written statement. Her testimony is also strongly suggestive of feigned memory loss.
Thus, the court should have allowed Prosecutor to question Witness about the entire statement. The written statement may also be admitted as extrinsic evidence. Witness should also have been given an opportunity to explain or deny all or part of the written statement, and the statement should have been admitted to impeach Witness’s credibility by proving that she made prior inconsistent statements. Admission of Witness’s statement for the limited purpose of impeaching her trial testimony does not raise hearsay concerns because it is not admitted to prove the truth of the matter asserted in the statement.
[NOTE: At Defense Counsel’s request, the judge should instruct the jury that the prosecution cannot rely on Witness’s prior written statement, which was admitted solely to impeach Witness’s credibility, to prove any of the elements of the charged offenses.]

Question 25

ISSUE: May a prior statement of identification be admitted? ANSWER: Yes. Part of Witness’s statement – “I was walking in City Park on May 5, at 2 p.m., when I saw Defendant. I know Defendant from the neighborhood and recognized Defendant as suspect number 1 on the 12-person photograph display shown to me today by Police Officer” – should have been admitted as a statement of identification, which is not hearsay.

Answer 25

A prior statement of identification of a person made after perceiving the person is not hearsay if the witness who made the statement testifies at trial and is subject to cross-examination concerning the statement. The rationale for this rule is that the opportunity to cross-examine the witness concerning the statement takes it outside the scope of the hearsay rule. For the statement to be admissible to prove the truth of the matter asserted under this provision, it is not necessary that the speaker be able to confirm the identification at trial or remember the identity of the person. If the declarant testifies and is subject to cross-examination concerning the identification, the declarant’s lack of memory at trial does not defeat admissibility and the requirements of Rule 801 are fulfilled.
In this case, Witness’s prior written statement included an identification of Defendant. That identification was made by Witness based on Witness’s knowledge of Defendant from the neighborhood, Witness’s direct observation of Defendant in City Park on May 5 at 2 p.m., and Witness’s recognition of Defendant’s photograph. That prior statement of identification of Defendant is excluded from the general definition of hearsay when, as here, Witness testifies and is subject to cross-examination concerning the statement.

Question 26

May a prior inconsistent statement made to the police be admitted to prove the elements of the charged offenses? ANSWER: No. The remainder of Witness’s prior inconsistent statement made to the police – “I saw Defendant attack Victim and then run away with Victim’s bag” – may not be admitted to prove the elements of the charged offenses because it is hearsay.

Answer 26

Under the Federal Rules of Evidence, certain prior inconsistent statements are not hearsay. However, to be admissible to prove the truth of the matter asserted, the prior inconsistent statement must be made “under oath, subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” Witness’s statement to the police does not fit within this rule, nor does it fit within any hearsay exception

Question 27

May a defense witness’s testimony about what his friends think of a criminal defendant whom they met recently just a few times be admitted to prove that the defendant is honest and gentle? ANSWER: A criminal defendant may introduce evidence of his good character relating to a relevant character trait. Character may be proved only through testimony of reputation or opinion.

Answer 27

Character evidence is generally inadmissible to prove that a person acted in conformity with a particular character trait. However, a defendant in a criminal case is permitted to offer evidence of a relevant character trait to prove that the defendant did not commit the charged offense. Because Defendant is charged with robbery and assault (both crimes of violence), evidence that Defendant is a “gentle person who would never hurt anyone” would be relevant. Evidence that Defendant is “honest” is a closer call. Committing a robbery or an assault is not inconsistent with having a reputation for truth-telling, if being “honest” means being a truth-teller. On the other hand, robbery is a form of theft, and theft is dishonest. So a court might admit evidence of Defendant’s honesty, as well as evidence of his gentleness.
However, the Federal Rules of Evidence limit the ways in which a defendant’s character traits may be proven. In particular, “proof may only be made by testimony as to reputation or by testimony in the form of an opinion.”
Here, Buddy did not testify as to his own opinion or Defendant’s community reputation. Rather, he said that a few of his friends think that Defendant is honest and gentle. Buddy’s testimony about his friends’ opinions of Defendant does not qualify as evidence of Defendant’s “reputation in the community.” “Community” includes circles of associates where one lives, works, or regularly socializes. Buddy’s friends’ opinions do not qualify as reputation testimony because the friends met Defendant recently and only a few times.

Question 28

The court should allow Witness to offer an opinion on the speed of Driver’s car.

Answer 28

To be admissible, evidence must be relevant. Relevant evidence is any evidence that tends “to make the existence” of a “fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Witness’s testimony is relevant to the determination of the action because the fact that Driver was speeding, if true, would make it more likely that Driver was acting negligently and was the cause of the accident. Under Rule 403, relevant evidence can be excluded under certain circumstances, but there are no facts in this question to suggest an appropriate ground for exclusion under this rule. Pursuant to Rule 403, relevant evidence may be excluded if it is unduly prejudicial, confusing, cumulative, a waste of time, or a source of undue delay in the proceedings.
However, Witness’s testimony is in the form of an opinion. Rule 701 places restrictions on non-expert opinion evidence. A witness who is not testifying as an expert may offer an opinion only if
(a) the opinion is “rationally based on the witness’s perception” of what happened;
(b) the opinion helps determine “a fact in issue”; and
(c) the opinion is “not based on scientific, technical, or other specialized knowledge” that is governed by Rule 702.
In this case, Witness’s testimony meets all three requirements. First, Witness saw Driver’s car as it approached the intersection and was able to perceive its speed. In addition, Witness was able to observe Driver’s speed relative to that of other cars around it, and Witness observed that Driver’s car was moving noticeably faster than surrounding cars. These perceptions provide a rational and logical basis for Witness’s opinion that the car was speeding.
Second, there is no question that whether Driver was speeding is a fact relevant to Pedestrian’s claim. If Driver was speeding, that fact would make it more likely that Driver was driving negligently and that Driver’s negligence caused the collision.
Finally, Witness is not an “expert in disguise” who is attempting to sneak in an opinion based on scientific or engineering principles. Witness’s opinion that Driver was speeding is a commonsense conclusion based on direct observations. No specialized training, experience, or education is necessary to form a valid opinion on such a basis.
[NOTE: How much weight the jury should give this opinion is an issue for the jury and does not affect admissibility.]

Question 29

The court should not admit Spouse’s testimony regarding Pedestrian’s character trait of being cautious and risk-averse.

Answer 29

Spouse’s proposed testimony that Pedestrian is very cautious and risk-averse is testimony about Pedestrian’s character. The purpose of offering the testimony is to suggest that Pedestrian would have acted consistently with that character on the day in question and would have checked before entering the intersection. If true, that would tend to establish that Pedestrian was not negligent. The evidence is therefore relevant.
However, Federal Rule of Evidence 404 restricts the use of character evidence, even when such evidence is relevant. Rule 404 provides that “evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion,” except in three situations that apply exclusively to criminal trials. Here, Spouse’s testimony that Pedestrian generally is cautious and risk-averse is relevant precisely because it suggests that on the day of the collision Pedestrian was acting in a cautious and risk-averse manner. This is exactly what Rule 404 forbids, and the testimony is inadmissible.

Question 30

The court should admit the evidence of Pedestrian’s memory loss.

Answer 30

Pedestrian’s concussion is relevant, albeit indirectly, to determining who is liable for the collision. Pedestrian intends to testify at trial about what happened, but the concussion has erased some of her memory. Evidence of memory loss is relevant because it has a tendency to suggest to the jury that Pedestrian’s testimony concerning the events related to the collision is less reliable. The evidence of memory loss may make the facts to which Pedestrian testifies “less probable.” Rule 403 is not a basis to deny Driver’s motion because it would not be “unfairly prejudicial” to Pedestrian to allow Driver to benefit from Pedestrian’s inability to recall what happened. The cross-examiner is permitted to delve into the witness’s story to test the witness’s perceptions and memory.

Question 31

ISSUE: May a spouse assert the marital privilege in order not to testify with respect to communications with a deceased spouse? ANSWER: Yes. The testimonial spousal privilege may only be asserted by a spouse who is testifying against an accused spouse. The marital-confidential-communications privilege can be asserted by either spouse. Wife may assert the privilege and refuse to testify concerning her confidential communications with Victor.

Answer 31

Two evidentiary privileges apply to the marital relationship. The federal courts recognize a testimonial or witness privilege under which a witness-spouse has the right not to testify against an accused spouse in a criminal case. This privilege is inapplicable in this case because Wife has not been asked to testify against her husband, Victor.
The federal courts and most states also recognize a second privilege for confidential communications between spouses when those communications occur during the marriage. The privilege protects communications during marriage even if the marriage no longer exists and even if one of the parties to the marriage is dead.
Under the majority view, both spouses hold the privilege for all communications between them. Here, Wife could invoke the privilege and be excused from testifying as to Victor’s statements to her because all the requirements of the privilege are met: Victor’s statements were statements of one spouse to another in private (it appears that no one overheard them), and neither Wife nor Victor revealed their exact content to anyone else. These confidential communications between spouses are protected by the privilege.
Some courts, however, have taken the position that only the communicating spouse can assert the privilege. Under that minority view, Wife could not assert the privilege and would have to reveal what Victor said.
Here, however, it is possible that Wife will not be allowed to invoke the privilege because she broke the confidentiality of her communications with her husband when she told Friend, a third party, some of what her husband told her. The marital communications privilege is intended to protect the confidentiality of spousal discussions. Where one spouse has revealed the content of those communications to a third person, then confidentiality no longer exists and the privilege probably should not apply. At the very least, Wife might be required to testify to the fact that she has already revealed to Friend: that Victor told her that he was attacked by someone other than Dan.