Hearsay pt 3 Flashcards
803: Except to Hearsay regardless if declarant is available
Reputation concerning character
a reputation among a persons associates or in the community concerning the persons character
803: Except to Hearsay regardless if declarant is available
Reputation consists of
the combined out-of-court statements of many people, concerning a person
803: Except to Hearsay regardless if declarant is available
Reputation evidence is hearsay if offered to prove
that the person actually has the reputed charateristic
803: Except to Hearsay regardless if declarant is available
The reputation must concern
character, not other matters
803: Except to Hearsay regardless if declarant is available
Evidence of a final judgemet of conviction if:
- the judgement was entered after a trial or guilty plea, but not a nolo contendre plea,
- the judgement was for a crime punishable by death or by imprisonment for more than a year,
- the evidence is admitted to prove that any fact essential to the judgement AND
- when offered by the prosecuter in a crim case for a purpose other than impeachment, the judgement was against the defendant;
803: Except to Hearsay regardless if declarant is available
Evidence of final judgement of a previous conviction: only applie when of a crime punishable by..
death or imprisonment in excess of a year (felony)
803: Except to Hearsay regardless if declarant is available
Judgement of a conviction:
judgement based on what are not admissible
nolo contondre
803: Except to Hearsay regardless if declarant is available
Judgement of a conviction: what is a nolo concondre plea (not admissible)
purpose is to permit the defendant to accept punishmnet for charged crime without dealing with adverse collatoral consequences at a later time
803: Except to Hearsay regardless if declarant is available
Judgement of a conviction:
Does not allow the goverment to offer evidence of the conviction of who?
A person other then the defendat, UNLESS offered to impeach the persons creditability
Hearsay and the constitution
The confrontation clause comes into play if:
A hearsay exception makes a statement admissible against a defendant in a criminal trial and the declarant is unavailable
Hearsay and the constitution
If the hearsay statement is “testimonial”
it is inadmissible unless the defendant had a prior oppertunity to cross examine the declarant
Hearsay and the constitution
what it means for a statement to be testimonial
the statement is made during a preliminary hearing, grad jury hearing, formal trial, police investigation (somethimes)
Hearsay and the constitution (confrentation clause)
If the statement is testimonial then, EITHER:
the declarant must testify at trial
OR
the declarant must be unavailable
AND
the defendant must had an earlier oppertunity to cross examine the declarant
Hearsay and the constitution
Police interrogations and investigations are nontestimonial when
circumstances objectively indicate the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency
Trying to fix it, see what happend, not who did it
Hearsay and the constitution
Police interrogations and investigations are testimonial when
circumstances objectively indicate there is no ongoing emergency and the primary purpose of the interogation was to establish or* prove past events potentially relevent to later criminal prosecution *
Hearsay and the constitution
Police interrogations and investigations: look at and understand (davis)
- look at formality
- can transition from one to the other
Hearsay and the constitution
To be testimonial, the statement must have been made to someone…
with the role of the investigation
(focus on the objective of the interrogation)
Hearsay and the constitution
Dying declarations are
exempted from confrentation clause and forfiture clause
Rule 607 who may impeach a witness
Any party including the party that called the witness may attack the witnesses creditability
Hearsay and the constitution
If in a crim case, even if the evidence is kept out under hearsay rule, if sufficient inita of trustworthiness…
have to let in OR ELSE affects the right to jury trial
Former testimony
Testimony from yesterday in same trial=
current trial and not hearsay
Former testimony
Depositions
are always hearsay even if they are for the current trial
Former testimony
Testimony given at…
earlier testmony trial or hearing
Former testimony
Conditions for operation in a criminal case
if offering against you then need to be a party today
Former testimony
Conditions for operation in a civil case
did you have ability to be cross examined before?
predecessors in interest
Former testimony
Conditions for operation
- testimony given at earlier testimony trial or hearing
- criminal case: if offering against you then need to be party today
- civil case: did you have ability to be cross examined before, predecessors in interest
- motive
Statement under the belief of imminent death
Cases it applies to
homicide
civil case
Statement under the belief of imminent death
Homicide
someone is dead and need to get in
Statement under the belief of imminent death
civil case
dont need death
Statement under the belief of imminent death
imminent
death is here and at the door
Statement under the belief of imminent death
statement has to be about
the casue of death or cirumstances of death
Character and other act evidence
When we speak of a persons character, we mean a persons
deposition or tendancy to act in a certain way
Character and other act evidence
It is evidence concerning a persons…
propensity to act in a certain manner that makes a general statement about that person and conveys a moral or ethical judgement
examples of specific acts that are used to show a persons characher
previous violent behavior, reckless actions, lies
Character and other act evidence
Evidence of character may also come from a witness who:
- based on personal observation of someones behavior
- has formed an opinion about that persons reputation
Character and other act evidence
Evidence may take form of testimony about a persons good reputation such as
being a peaceful, careful, or truthful person
Character and other act evidence
different rules apply depending on the type of case in which
- the case is offered
- the kind of evidence offered
- the purpose for which it is offered
Character and other act evidence
While the rules generally, prohibit the use of evidence of specific acts to show that a person has a particular character and thereby is more likely to have acted in conformity with that character on a particular occasion… evidence of a persons
habit or an organization routine practice may be introduced to show action in conforminty
Character and other act evidence
evidence of a persons beliefs (socialist or athiest) OR innate abilitys (left handed or fast runner) is
not prescribed by the general propensity evidence
Character and other act evidence
When considering the admissiblity evidence under these rules,
Ask whether it is admissible for
- this specific purpose
- under these circumstances
- in this type of case
- in the form in which it is offered
Charater evidence- the general prohibition
404 announces a broad prohibition on the use of evidence of a persons charater to prove that on a particular occasion the person acted in conformity with that charater (propensity evidence)
Character and other act evidence
Propensity evidence
the use of evidence of a persons charater to prove that on a particular occasion the person acted in conformity with that charater
Character and other act evidence
Evidence of specific acts are not barred by 404 when acts are
relevent to prove something besides a persons character
404: Charater evidence, crimes, wrongs, or other acts
Charater evidence:
Evidence of a persons charater or character trait is not admissible to prove
that on a particular occasion the person acted in accordance with the character or trait
404: Charater evidence, crimes, wrongs, or other acts
Crimes, wrongs, or other acts
evidence of a crime or other act is not admissible to prove
a persons character in order to show that on a particular occasion the person acted in accordance with the character
404: Charater evidence, crimes, wrongs, or other acts
Rule generally prohibits the admission of evidence of the prior murder for 3 reasons:
- our system hold to a deeply held principle that people must be tried not for the kind of persons they were or are, but for what they have done on a charged occasion
- characters evidence has a low probative value
- character evidence carries a substanial risk of unfair prejudice
404: Charater evidence, crimes, wrongs, or other acts
bar applies to evidence regarding the charater of any person
not just the parties in the litigation, whether good or bad character, or in criminal or civil cases
404: Charater evidence, crimes, wrongs, or other acts
does not apply to
organizations, institutons, corporations, animals, or things
Only people!
404: Charater evidence, crimes, wrongs, or other acts
Allows evidence of character in several situations
- to prove character when character itself is an essential element of a charge, claim or defense (when character is at issue)
- when criminal defendant chooses to introduce pertinent character evidence regarding wither himself or the alledged victims
- in sexual assualt and child molestation cases and
- to prove the character for truthfulness of a witness
404: Charater evidence, crimes, wrongs, or other acts
Character evidence allowed when character is “in issue”
when the law requires a party to prove character in order to establish an element of a charge, claim, or defense
404: Charater evidence, crimes, wrongs, or other acts
Evidence of a Criminal Defendants or alledged vicitims character
The rule generally prohibits the prosecution in a criminal trial from offering character evidence of the defendant, but the rules allow criminal defendants to open the door to some character evidence
404: Charater evidence, crimes, wrongs, or other acts
The criminal defendant may open the door to some character evidence in 3 ways
- may offer evidence of a pertinent character trait of his own
- may offer evidence of a pertinent character traint of alledged victim
- may make evidence of the victims peaceful character by offering, in a homicide case, evidence that the victim was the first aggressor
404: Charater evidence, crimes, wrongs, or other acts
A defendant may offer evidence of the defendants pertient trait, and if that evidence is admitted
the prosecuter may offer evidence to rebut it
404: Charater evidence, crimes, wrongs, or other acts
a defendant may offer evidence of an alledged crime victims pertinent trait, if admitted
the proceuter may,
1. offer evidence to rebut it; and
2. offer evidence of the defendants same trait, and
3. in a homicide case, may offer evidence of the victims trait of peacefulness to rebut evidence that the victime was the first aggressor
413 and 414 allows the prosecution to use the character evidence and offer evidence of a criminal defendants other sexual assaults of cm for what purpose
any relevent purpose including arguing that the defendant has a propensity to commit the same crime and therefore is likely to have commited this charaged crime
SA and CM
412 (SA) restricts the admissibility of character evidence regarding
a victim of sexual assault
Similar crimes in SA and CM
Disclosure
if the prosecutor intends to offer this evidence the pros. must disclose it to the defendant
- including witness’s statements or a summary of expected testimony
- must do so at least 15 days before trial or at a later time that the court allows for good cause
Similar CM
a child age
under 14
Similar SA or CM act
criminal conviction of the similiar act
need not have resulted in a criminal conviction to be admissible
Evidence of SA or CM can be
- from a witness with personal knowledge
or - authenticated documents
Similar SA or CM act
Acts that occured after the charged act
may be admitted
Similar SA or CM act
Common facts that the court uses to weigh the probative value against 403 dangers include:
- The simiarity of the other act to the charged offense (similarity raises probative value)
- the amount of time between the other act and the charged offense, and any interviening conduct of similar nature
- the level of certainty that the other act occured
- whether the unfair prejudice may be minimized
Similar SA or CM act
Character evidence of an alledged victim of SA
known as “rape shield’ statutes
prevents the admission of most evidence of the alledged victims other sexual behavior or predisposition to engage in sexual behavior
Similar SA or CM act
In criminal cases, the court may admit the following evidence of the victims sexual behavior
- Evidence of specific instances of a victims sexual behavior if offered to prove that someone other then the defendat was the source of semen, injury, or other physical evidence
- evidence of specific instances of a victims sexual behavior toward the defendant if offered by the prosecutor or if offered by the defendant to prove consent, and
- evidence whose exclusion would violate the defendants constitutional rights
Similar SA or CM act
In a civil case, the court may admit evidence offered to prove a victims sexual behavior or sexual predisposition if
its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party
Similar SA or CM act
In a civil case, the court may admit evidence of a victims reputation only if
the victim placed it in controversy
Similar SA or CM act
“sexual behavior”
an activities that involve actual physical conduct and that imply sexual intercourse or sexual conduct
Similar SA or CM act
Evidence of a victims sexual predisposition is inadmissible
evidence that may have a sexual connotation for the factfinder
ex. the victims dress, speech, or lifestyle
405 methods of proving character
- reputation or opinion
- specific instances of conduct
405 methods of proving character
offer to prove
motive
opportunity
intent
knowledge
lack of accident
others, list not exhausitve
405 methods of proving character
Doctrine of chances
acts that make you go “what are the chances”
405 methods of proving character
complete the story argument
gve context of the case
405 methods of proving character
Procedure for determining admissiblity
- proper purpose
- relevent to purpose
- relevent to the point,, probative v. danger
- issue limiting instruction
405 methods of proving character
Habit evidence, routine practice
specific routine, respomse to stimuli or situation
SA
adds what to the balencing test when deciding what character evidence to use
harm to the victim
405 methods of proving character
Reputation or opinion may be proved by
- testimony about the persons reputation
- or by testimony in form of an opinion
- on cross examination of the character witness, the court may allow an inquiry into relevent specific instances of the persons conduct
405 methods of proving character
When a persons character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by
relevent specific instances of the persons conduct
405 methods of proving character
Opinion testimony consists of the testimony of someone who
knows the persons character well enough to assert an opinion about them
405 methods of proving character
With repuatation and opinion testimony, the witness may not on direct examination explain the basis for their testimony by referring to
specific instances of the persons conduct
405 methods of proving character
To minimize the harm that cross examination questions of specific instances of bad conduct brings, the rules and courts have imposed a series of safegards
- The questioner must have a good faith basis that the conduct actually occured
- If a witness denies knowledge of the conduct (a party may not prove the specific act with additional (extrinsic) evidence
405 methods of proving character
evidence of crimes or other acts is relevent when
for some other reason then to show that on a particular occasion the person acted in accordance with the character
405 methods of proving character
Can offer evidence of crimes or other acts to show the defendant had *oppertunity or ability *to commit the crime
show that they could have done it
405 methods of proving character
Can offer evidence of crimes or other acts to show a plan or preparing for the crime
evidence that defendant was specifically planning or preparing for the crime
405 methods of proving character
Can offer evidence of crimes or other acts to show the defendant had knowledge to commit the crime
evidence that makes it more likelt the defendant knew how to commit the crime
405 methods of proving character
When other act evidence is offered ro show knowledge, cts typically req
that the act in question requires some kind of specialized knowledge
405 methods of proving character
lack of accident aka theory of chances
the reaction “that cannot be a coincidence! what are the odds”
405 methods of proving character
The proponent of rule 404 other act evidence must be prepared to meet a relevent objection by
demonstrating that evidence is relevent on a non-character theory to an ultimate fact in the case
to convince a judge and a reasonable jury that the other act could have occured
405 methods of proving character
submitting other act evidence under the Theory of Modus operandi
the charged act and the other act must be distinct and virtually identical for the evidence to be admissible
405 methods of proving character
4 step inquiry the court must engage in when determining the admissibility of other act evidence
- The evidence must be offered for a proper purpose
- the evidence must be relevent to prove the rule 404 fact in question (easy to satisfy, need not be in dispute)
- the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice or other dangers under 403
- Persuant to rule 105, the ct must issue a limiting instruction if a party requests it to do so, and may issue limiting instructions on their own
Rule 406 Habit, Routine Practice
Evidence of a
persons habit or an organizations routine practice
Rule 406 Habit, Routine Practice
ct may admit evidence of regardless of whether
it is corroborated ot ehther there was an eyewitness
Rule 406 Habit, Routine Practice
To determine if a pattern of behavior is a habit, courts look to
- the specificity of the behavior
- the regualarity of the behavior
- the situation that triggers the ehavior
Evidence of similar events
evidence can be offered to show that
a particular event occured is evidence that similar events have occured under similar circumstances
Rule 407 Subsequent remedial measures
When measures are taken that would have made an earlier injury or harm less likely to occur
407 subsequent remedial measures
evidence of the subsequent measures is not admissible to prove
- negligence
- culpable conduct
- a defect in a product or its design
- a need for a warning or instruction
407 subsequent remedial measures
Limited exclusionary principle
may be admitted for
another purpose then the ones not admissible for,
such as impeachment, proving ownership, control, or the feasibility of precautionary measures
407 subsequent remedial measures
feasibility
is it feasible to make a product safer
408 compromise offers and negotiations
used to promote
settlement, need a disputed claim
409: offer to pay medical and similar expenses
paying medical bills are not admissible to prove liability
410: pleas, plea discussions, and related documents
if it is a plea that sticks, then
not covered
411 liability insurance:
just because you get insurance does not mean that you believe you are a reckless person ot that the person acted negligently
But may admit for another purpose
411 liability insurance
use to prove ownership
if someone denies they own a car/building insurance can prove to show ownership
411 liability insurance
used to show witness bias
ex. a defendant insurance adjuster may lowball the amount of damages
or
juror may work for the insurance company
411 liability insurance
type of insurance
not malpractice
can be auto insurance
common objections: ambiguous
keeps the question open
common objections: argumentive
your not the smartest are you
common objections: compound
2 q’s for 1 answer
common objections: assumes fact not in evidence
brings up fact not shown in evidence yet
common objections: cumulative
same question in different ways
common objections: asked and answered
already asked
common objections: calls for narrative
ask them to tell you a story
common objections: leading
asking a question leading to answer
407 subsequent remedial measures
applies only when evidence is offered to prove
negligence or culpable conduct
407 subsequent remedial measures
subsequent remedial measures
measures that if taken before the accident, would have made the accident less likely to occur.
407 subsequent remedial measures
timing
remedial measures must have been taken after the event that gave rise to the action
407 subsequent remedial measures
is admissible to prove feasibility of precautionary measures
- the possibility to take precautionary meausres
or - that the cost and benefit make the taking precautionary measures as not feasible
407 subsequent remedial measures
how used to impeach
by contradicting them, show they are wrong about a fact to which they testified
compromise and payment of medical or similar expenses
evidence not admissible to
- prove or disprove the validity or amount of a disputed claim
- to impeach a prior inconsistant statement or contradict.
compromise and payment of medical or similar expenses
evidence that is not admissible
- furnishing, promising or offering,, accepting, ect a valuable consideration in compromising or attemption to compromise the claim, and
- conduct or a statemetn made during compromise negotiaton about claim ( except in a crim case and when negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.)
compromise and payment of medical or similar expenses
the ct may admit the evidence for anther purpose such as
proving witness bias or prejudice or negating a contention of undue delay
409 offers to pay medical and similar expenses
evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury
409 offers to pay medical and similar expenses
applies only when
evidence is offered to prove or disprove the validity or amount of a disputed claim
409: offer to pay medical and similar expenses
statements of a negotiation
are excluded
409: offer to pay medical and similar expenses
statements made in connection with an offer to pay medical expenses
are not excluded
410: pleas, plea discussions, and related documents
in a civil or crim case, evidence of the following is not admissible agaisnt the defendant, who made the plea or participated in plea discussions
- a guilty plea that was later withdrawn,
- a nolo contendre plea
- a statement made during a proceeding on those pleas under crim pro rule 11 or state procedures
- a statement made during plea discussions with an attourney for the proseuting authority; if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea
410: pleas, plea discussions, and related documents
exceptions
- in any proceeding in which another statement made during the same ples or
- plea discussions has been introducted, if in fairness the statement ought to be considered together or
- in a criminal proceeding for perjury or false statment, if the defendant made the statement under oath, on the record, and with councel present
410: pleas, plea discussions, and related documents
A guilty plea if offered to prove the defendants guilt of the crime is offered into evidence against that party…
is admissible as non-hearsay, otherwise is inadmissible hearsay
410: pleas, plea discussions, and related documents
withdrawn guilty pleas
cannot use as evidence
410: pleas, plea discussions, and related documents
pleas of nolo contendre
is inadmissible as evidece
410: pleas, plea discussions, and related documents
statements made at hearing to enter plea
excludes a statement about either of those pleas proceeding under crim pro 2 or other state pro.
-prevents statements made suring the hearing from being used
410: pleas, plea discussions, and related documents
statements made in the course of plea barganing
exclues a statement made in during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later, withdrawn guilty plea
410: pleas, plea discussions, and related documents
Statements made in plea barganining and formal plea hearing
- statements are admissible in any proceeding in which another statement made during the same plea discussions has been introduced, if
in fairness, both statements ought to be seen together
- a specialized application of the completeness principle exemplified by rule 106
410: pleas, plea discussions, and related documents
Impeachment use of plea evidence
- forbids the use of the evidence against the
criminal defendant regardless of the purpose for which that evidence miight be offered
410: pleas, plea discussions, and related documents
waiver of the rules protections
absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisons of rule 410 is valid and enforcible
611 mode and order of examining witness and presenting evidence
The court should exercise reasonable control over the mode and order of the questioning of witnesses and presenting evidence as to:
- make those procedures effective for determining the truth
- avoid wasting time
- protect witness from harassment or undue embarrasment
611 mode and order of examining witness and presenting evidence
scope of cross examination
should not go beyondd the subject matter of the direct examination and matters affecting a witness, the ct may allow inquiry into additional matters as if on direct examination
611 mode and order of examining witness and presenting evidence
leading questions should not be used on direct examination except
as necessary to develop the witnesses testimony
611 mode and order of examining witness and presenting evidence
Ordinarily, the court shoud allow leading questions on
- cross examination and
- when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party
rule 614 cts calling or examining a witness
courts typically leave it to the lawyers but a court can
call and examine a witness, which a party can object to
The ct or jury may consider in determining the creditability of a witness any matter that has a tendancy in reason to prove or disprove the truthfulness of his testimony at the hearing.
Including but not limited to:
creditability factors brough to jury attn without form prez of evidence
- his demenor while testifying and the matter in which he testifies
- the character of his testimony
- the extent of his capacity to percieve, recollect, communicate any matter about which he testifies
- the extent of his oppertunity to percieve any matter about which he testifies
- his character for honesty or veractity or their opposites
- the existance or nonexistance of any fact testified by him
- a statemnet previously made by him that is consistant with his testimony at the hearing
- a statement made by him that is inconsistant w any part of his testimony at hearing
- his attitude toward the action in which he testifies to toward the giving of testimony
- his admission of untruthfulness
impeachment
the effort to cast doubt on the creditability of witness
607
who may impeach
any pty to impeach any witness, including their own
ultimartely all tools for assessing the creditability of a witness testimony is concerned eith the 4 factors
perception, memory, cincerity, narraction (a 5th criscoe one)
Factors affecting the witness oppertunity to percieve
- quality of oppertunity to percieve
- poor vision
- vision (darkness ect)
- metal or emotional factors
- intoxication or mind altering substances
Factor affect witness capactity to recollect
- intoxication
- psychiatric conditions
- worse then average memory
Factors affecting the witness capacity to narrate
- ## phisiological or other facts
appearance and status factors influence on jury
ex. prison jumpsuit, ct may allow defendant to wear street clothes
bias, motive, interest
Evidence of bias
evidence that the witness has a reason in this instance to slant testimony to facot or disfavor one party over another
bias, motive, interest
proving bias
usually circumstantially by evidence of facts that suggest a bias
bias, motive, interest
admissibility of bias evidence
rules imply evidence of bias should be admissible
Impeachment by contradiction
- showing that part of thier testimony is wrong
- no explaination on why the witness testimony was wrong
- all it does is provide evidence that hte witness erred some portion of her testimony
Contraditiction of one witness by the testimony of a secod witness has 2 purposes
- testimony of 2nd witness can be used to establish the facts to which that witness testifies
- used to show the 1st witness lacks creditability
The collatoral matter limit on impeachment by contradiction
extrinsic evidence is not admissble to contradict a witness on a collatoral matter
The rule limiting admissibility of extrinsic evidence of contradiction applies only to the use of exrinsic evidence offered to prove the
collatoral matter
collatoral matter
no bearing/purpose/connection to matter of trial besides for creditability/contradiction
only purpose of a collatoral matter
creditability
witness character
3 forms of evidence for character truthfulness or untruthfulness
- opinion and reputation for truthfulness
- specific instances of conduct probative of veractiyu
- criminal convictions that suggest a character for untruthfulness
Reputation or opinion concerning truthfulness
a witnesses creditability may be attacked or supported by
- testimony about the witness’s reputation for havinf a character for truthfulness or untruthfulness
or - by testimony in the form of an opinion about that character
The only way that 608 allows evidence of specific acts probative of truthfulness is to
impeach through questioning on cross examination to
1. the testifying witness (prinicipe)
2. another witness whom the testifying witness has oppered opinion or reputation testimony
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction
- be a felony (crime punishable by death or imprionment for more then one year)
- for any crime regardless of the punishment, evidence must be admitted if the ct can readily determine that establishing the elements of the crime required proving - or the witness admitting- a dishonest act or false statement
evidence of conviction is only admissible if
- probative value, supported by specific facts and circumstances, substatially outweights prjudicial effect
- proponet gives an adverse party reasonable written notice of the intent to use it so that the party has fair oppertunity to contest its use
Character evidence as proof of conduct is not admissible in a civil case unless
character is directly in issue (e.g., in a defamation action)
