Evidence Notes

3

Evidence Notes

				SUBJECT: Direct and Cross-Examination; Introducing Evidence; Making a Record; Appellate Review (pp. 1-48)

				Preface Comments by Professors:

				Four R’s of Evidence:

				Relevance, Reliability, Reality, Right (should you use it?)

			I.	Why Rules of Evidence? (Course covers rules for BOTH civil and criminal federal litigation.)

			A.	Five reasons:

			1.	Mistrust of juries: biggest single reason for Law of Evidence;

			2.	To service substantive policies relating to the subject being litigated; e.g. Civil cases need only prove by a “preponderance of the evidence” making a π recovery easier; in Criminal cases “by clear and convincing evidence” or “beyond a reasonable doubt” making the π’s job harder and the ∆’s harder;

			3.	Furthering Extrinsic Policies (matters unrelated to the case’s facts being litigated): e.g. rules governing spouses as witnesses to help preserve and protect the institution of marriage;

			4.	To ensure accurate factfinding;

			5.	To control the scope and duration of trials.

			B.	Federal Rules of Evidence applies to state law diversity cases (civil or criminal) except as noted below where state rules of evidence apply (Ω301, 501, 601):

			1.	presumptions;

			2.	privileges;

			3.	competency of witnesses.

			II.	What Happens at Trial (pleadings, preliminary actions, pre-trial motions, depositions, pre-trial conferences are all finished by this point):

			A.	Jury Selection

			1.	For Cause Challenges: Finding “prejudice” in a juror enables a side to challenge a juror “for cause”; the judge determines if this challenge is valid; unlimited “for cause” challenges; (Jury Selection process = Voir Dire)

			a.	Often thought of as: “Jury De-Selection”; you’re not picking so much as you’re getting rid of those persons you do not want.

			2.	Peremptory Challenges: Always a finite number. Usually only three; excusing a juror for any reason and the reason need not be stated; judge does not review. (Exceptions: Cannot disqualify based on sex, race, religion, etc. unless that factor is probative to the issue being litigated.)

			3.	Federal Courts: Voir Dire is conducted by the judge (usually very rapid); state court conducted by the lawyers and can run for days.

			B.	Opening Statements

			1.	Party with Burden of Persuasion goes first:

			a.	Civil cases: Plaintiff;

			b.	Criminal cases: Prosecutor (which is usually the π, as well);

			2.	First introduction to the jury about the facts of the case; opening statement is NOT evidence;

			a.	It’s what the lawyer expects the evidence the lead to;

			b.	Also not supposed to be an argument, but rather a statement of where the evidence will lead; a narrative of the facts (which the evidence will illustrate during trial);

			C.	Presentation of Proof

			1.	Case-in-Chief: the main presentation of the case of each side with evidence; (“rests” after completing this phase)

			2.	Case-in-Rebuttal: the refutation of the other side’s case-in-chief;

			3.	This can continue until each side is satisfied or the judge deems it repetitive and stops it;

			4.	Direct and Cross-Examinations are during this part of the trial.

			D.	Trial Motions

			1.	JMOL, et al.

			E.	Closing Argument

			1.	Party bearing the Burden of Persuasion goes first, then goes a final time after the opposition’s closing argument.

			F.	Instructions

			1.	The parties draft the jury instructions and submit them to the court for approval and/or modification;

			G.	Deliberations

			1.	Part of the reason for secrecy in jury deliberations is that if opened for scrutiny, the institution may not itself survive;

			H.	The Verdict

			I.	Judgment & Post-Trial Motions

			1.	JNOV (aka Judgment Notwithstanding the Verdict) is made at this phase;

			J.	Appellate Review

			1.	Evidentiary errors claimed on appeal are only permitted if the claim has been “preserved” by being clearly stated at trial;

			III.	Making the Record (written account of the trial from start to finish used by higher courts on appeal);

			A.	The Record - Composed of 5 kinds of material:

			1.	The pleadings;

			2.	Filed documents; (motions, accompanying briefs, et al.)

			3.	Record of the Proceedings;

			4.	Exhibits; (documentary or physical)

			5.	Docket entries; (chronological line items of trial from start to finish compile by the clerk; a veritable Table of Contents of the trial);

			B.	Critical Importance of the Record: It’s critically importance for any attorney to get their information, objections, exhibits, evidence of all kinds in (and the other side’s excluded) as much as possible to ensure the case survives on appeal; that means objections (noted below) and offers of proof are done properly and never missed.

			C.	What to Not to Do - Pitfalls

			1.	Echoing: don’t repeat the answers of a witness into the record;

			2.	Overlapping: speaking over the other counsel or judge or multiple people speaking at once; hard to get into the record by the reporter;

			3.	Avoid “sidebar” conversations in front of jurors; request to speak in chambers if a sidebar requires a lengthy discussion;

			D.	What to Do - Taking Care (Goal: To PRESERVE as much as you can for your side in the record);

			1.	Give the reporter a list of the witness names in advance so spelling is not an issue in trial;

			2.	Refer to Exhibits by Exhibit number, not general description;

			3.	Make sure witnesses audibly answer; no head nods or shakes;

			IV.	How Evidence is Admitted or Excluded

			A.	Foundation & Offer

			1.	Testimonial Proof/Evidence: Direct Examination

			a.	For most situations, Direct Examination must proceed with non-leading questions;

			(1)	There is no set of rules defining a “leading question”; judge’s discretion;

			(2)	The idea is that the witness should be testifying, not the lawyer;

			b.	Direction Examination questions are typically open-ended;

			(1)	The objective with Direct Examination is to get the witness to testify and enable you to get evidence submitted into the record during the examination;

			(2)	The Scope of the Direct Examination is fairly broad; it’s all things probative in determining the truth of a situation (but it must be probative -- with some exceptions: rules that govern certain things that are not permitted to be asked); not just limited to the actual even itself;

			(3)	Example Questions: “Where do you work?”, “How long have you worked there?”

			c.	Typical Order of Examinations:

			(1)	Direct Examination;

			(2)	Cross-Examination;

			(3)	Redirect Examation;

			(4)	Then in MOST courts, that’s it.

			2.	Testimonial Proof/Evidence: Cross-Examination

			a.	Leading questions ARE permitted in Cross-Examination;

			(1)	Example questions: “Do you work at Bank of America?”, “You’ve worked there for 6 years, correct?”

			b.	Here the questions are as important as the answers; for they can suggest ideas to the jury to consider;

			c.	Limitation: Scope-of-Direct Rule. Cross-questioning is limited to issues explored on direct examination;

			(1)	A judge may permit wider questioning on a case-by-case basis;

			(2)	If it’s probative, then a question that otherwise might be seen outside of the scope would be permitted;

			d.	Exception: 5th Amendment Self-Incrimination: The accused who elects to be a witness at his own trial waives the 5th Amendment protection on subjects he testifies upon during direct-examination.

			3.	Real Evidence: tangible things directly involved in the transaction or events being litigated;

			a.	Authentication of Evidence: Witness testimony to the presence, use, or other information establishing those things entered into evidence were authentically the things they witnessed.

			4.	Demonstrative Evidence: Created for illustrative purposes at trial; e.g. diagrams, animations, photographs, crime-scene photographs, maps, models, etc.

			5.	Writings: Cannot be proved by testimonial evidence; must be submitted at trial to prove the contents of the writing;

			a.	Examples: Contracts, etc.

			b.	There are specific rules governing the submission of writing to the record;

			(1)	But often, by stipulation writing makes it into the record;

			c.	Writings are often considered Hearsay;

			B.	Keeping Evidence Out

			1.	The Objection: Must be timely, raised at the earliest possible opportunity. Must also contain a “ground”; in other words it must be specific, not general. General Objections overruled will not preserve issues for appeal (unless sustained by the judge with reason); specific objections will.

			a.	Substantive Objections: Objections based on Exclusionary principles in the Rules of Evidence;

			b.	Formal Objections: Focus on the manner of questioning; e.g.:

			(1)	Asked and Answered;

			(2)	Argumentative;

			(3)	Compound (questions whose answer can mean more than one thing; usually a question which contains more than one question);

			(4)	Leading the Witness;

			(5)	Misleading; (a question that misstates the evidence)

			(6)	Ambiguous, uncertain, and unintelligible;

			(7)	Speculation or Conjecture; (cannot ask witnesses to “guess” or provide “conjecture”);

			(8)	Nonresponsive to the Question;

			2.	The Motion in Limine: “At the Threshold”

			a.	Motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in atrial. This is done in judge’s chambers, or in open court, but always out of hearing of the jury. Can often determine trial strategy of the sides.

			3.	The Offer of Proof:

			a.	Counterpart to the Objection; just as crucial for appeal issues;

			b.	A lawyer faced with a ruling excluding evidence MUST make a formal offer of proof if he wants to preserve the point for later appellate review; which means demonstrating to the trial court exactly what he is prepared to introduce, if permitted.

			c.	Offers of Proof are ALWAYS with the jury excused and not present.

			C.	Judicial Mini-Hearings:

			1.	Judges determine preliminary questions (witness competency, privilege, admissibility of evidence);

			2.	Juries determines evidence questions where different answers are possible;

			V.	Consequences of Evidential Error

			A.	Separating evidentiary errors that require correction on appeal from those that do not: three adaptive techniques:

			1.	Appraising Error on the Merits:

			a.	Reversible Error: an error that affected the judgment/outcome; attorney made necessary motions to preserve issue for appeal;

			b.	Harmless Error: an error that did not affect the judgment/outcome;

			c.	Plain Error: Error that warrant relief even though the attorney may not have made motions to preserve the issue for appeal;

			d.	Constitutional Error: criminal cases; usually means evidence was admitted that should have been excluded for Constitutional reasons. Most often invoked for Search and Seizure reasons.

			2.	Evidence Doctrines:

			a.	Cumulative Evidence Doctrine: Even in the presence of an error of admitting or excluding evidence, the evidence that is not in dispute is so overwhelming that the jury would have still found the way that they did (most common reason for denial of appeals);

			b.	Curative Instruction Doctrine: An instruction given by a judge to limit certain evidence to avoid reversal on appeal.

			c.	Overwhelming Evidence Doctrine: How is this different from Cumulative Ev. Doctrine??

			3.	Appellate Deference: Discretion of the Trial Judge

			4.	Procedural Pitfalls

			a.	Failing to Object or Offer Proof:

			(1)	Failing to Object: Waives the right to claim error in admitting evidence;

			(2)	Failing to Offer Proof: Wavies the right to claim error in excluding evidence;

			b.	Inviting Error:

			c.	Opening the Door:

			VI.	Obtaining Review of Evidence

			A.	Appeal from Judgment

			1.	Appeals of most rulings during a trial are not appealable until after judgment; exceptions:

			B.	Interlocutory Appeals

			1.	Two most common reasons for Interlocutory Appeals (Privilege Rulings & Suppression of Evidence in Criminal Cases);

			a.	Privilege Rulings:

			b.	Suppression Motions:

				Review Standards in Appeals:

				de novo: Pure Questions of Law (fresh review, as if reviewing it new) Clear Error: Questions of fact reviewed (fair amount of deference to trial court) Abuse of Discretion: Most deference to the trial court.

				Types of Evidence:

				Testimonial Evidence Physical/Real Evidence Demonstrative Evidence

				Ω611 & Ω104

				Ω611: Mode and Order of Interrogation and Presentation

				a) Control by court: Goals: 1) make evidence/case presentation effective to find truth, 2) be efficient with time, 3) protect witnesses from harassment/embarrassment.

				This rule (a) is general on purpose; to give discretion and flexibility to the judge to effectively run an adversarial interrogation process during trial.

				b) Scope of Cross-Examination: Limited to subject matter of direction examination and/or matters affecting the credibility of the witness. c) Leading Questions: No leading questions on direct examination of a witness (except to develop witness’ testimony); Adverse parties’ calling a hostile witness may interrogate by leading questions.

				Ω104: Preliminary Questions

				a) Questions of Admissibility Generally: Preliminary questions on witnesses, privileges, and admissibility of evidence are determined by the court and not bound by the rules of evidence (except for issues of privilege); EVEN THOUGH, the issues in the preliminary stage may be issues of fact for the judge to determine as the trier of those particular, preliminary facts.

				This is about the Trial Judge serving as gatekeeper.

				b) Relevancy Conditioned on Fact: The relevance of some evidence is dependent upon a preliminary condition. E.G., a letter establishing an admission of a probative fact must also be shown to have been written by the person in question. Another Example: Statements of co-conspirators.

				This is about the jury; and that they will be judging issues of fact; so if facts depend upon the fulfillment of a condition, the jury decides this not the judge.

				c) Hearing of Jury: Confessions’ admissibility are heard outside of the jury; in addition, other matters when “justice requires” should be heart outside of the jury. Other matters can be before a jury - judge’s discretion. d) Testimony by Accused: Subjects covered by a witness in a preliminary hearing does not give rise to cross-examination on such issues during trial. e) Weight and Credibility: This rule does not restrict evidence on weight and credibility being given before the jury.

				≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈

				Relevance (pp. 49-78)

				Relevance: Evidence that tends to prove a fact, more probable than less probable with the evidence. Conceptually: Relevance is a relational concept; and carries no meaning outside of a context. Codifying relevance, then, is pointless as the contexts are infinite in the law. There is, therefore, no test for relevancy but instead only the application of logic and general experience to determine relevance of evidence in the context of the case at hand.

			I.	Types of Evidence:

			A.	Direct Evidence: Direct evidence supports the truth of an assertion (in criminal law, an assertion of guilt or of innocence) directly, i.e., without an intervening inference.

			B.	Circumstantial Evidence: Circumstantial evidence, by contrast, directly supports the truth of evidence, from which the truth of the assertion may be inferred. In other words, even though the circumstances may support an assertion, alternative explanations for those circumstances are still possible.

			C.	Example: a witness who testifies that he saw the defendant shoot the victim gives direct evidence. A forensics expert who says that ballistics proves that the defendant’s gun shot the bullet that killed the victim gives circumstantial evidence, from which B’s guilt may be inferred. In direct evidence a witness relates what he or she directly experienced.

				Cumulative versus Corroborative Evidence: There’s a difference between “cumulative” evidence and “corroborative” evidence. Too many pictures of the same thing would be cumulative and could end up qualifying as a 403 violation. But other separate evidence that corroborates the evidence originally introduced is unlikely to be a 403 problem. Stipulations: Just because one side stipulates a legal argument, does not mean the evidence for that point is irrelevant and therefore does not come into trial. (see Old Chief.)

				Inductive versus Deductive Reasoning/Logic:

				Deduction: A conclusion which NECESSARILY follows from a set of premises. Induction: Making a general premise in which the conclusion does NOT necessarily follow; there are other options. Typically, humans do this with experience. Ex. The Sun always rises. = An inductive conclusion. Because the sun has always arisen in the past does not mean it will in the future. The key to understand in deductive and inductive logic, is that your questions can be inductive and general in nature, but the answers you seek must apply deductively and apply to elements of an area of law that you are seeking to fulfill. Example: Questions about the history of floors in a store being over-waxed. That kind of question is inductive in nature, but the answer is not about the future condition of the floor (a typical inductive answer). Instead, its about proving prior knowledge for tort liability.

				Sequence of Analysis:

				Is the evidence relevant? Balancing test of Ω403: Probative Value vs. Danger of Prejudice

			I.	Logical Relevance

			A.	Relevance & Materiality

			1.	Relevant Evidence: Evidence that tends to establish the point for which it was offered;

			2.	Material Evidence: If the point the Relevant Evidence tends to establish also bears on issues in the case. The “of consequence” language in 401 establishes this. This is also the factor that is primary in the judges “balancing test” when deciding to keep evidence in or out (under Ω403).

			3.	Both Concepts are united in the term “relevance” in the FRE 401.

			B.	Establishing Relevance: The Evidential Hypothesis

			1.	Structure: (Note: this structure is Deductive Reasoning /// not Inductive because of it’s tendency to be circular in nature.)

			a.	Contains at least one, General Premise, followed by:

			b.	At least one specific Premise;

			c.	A Conclusion toward which the evidence points.

			2.	Use:

			a.	If the adverse party objects on the basis of “Relevance”, the proponent of the evidence usually must argue an Evidential Hypothesis explaining why the proof is relevant.

			b.	Key Question: Does the evidence being objected to go toward the weight or the admissibility? If weight, the jury decides it (jurors decide weight, not judges and it’s not included in a jury instruction). If admissibility, the judge decides whether its in or out (Ω403).

			C.	Relevance as Threshold: The Standard of Probative Worth (Weight & Sufficiency of Evidence ≠ Relevance)

			1.	Weight of Evidence: The probative worth that the fact finder (usually a jury) places on the evidence in the case.

			2.	Sufficiency of Evidence: The amount of evidence necessary to satisfy the standard of proof that applies in the case.

			3.	Relevancy does NOT mean either of these terms. Relevancy under Ω401 is a different concept altogether.

			II.	Pragmatic Relevance

			A.	Prejudice and Confusion

			1.	Ω403 Permits the judge to limit how much evidence is permitted in on any given point; this is done for efficiency.

			2.	Great quote: “A tireless or resourceful litigant should not have unlimited freedom to wear down his opponent by repetitious proof or unnecessary waiting. In short, Ω403 is evidence law’s answer to the adage, ‘Enough is enough.’”

			III.	Limited Admissibility

			A.	Ω105: If evidence is admissible for one party but is NOT admissible to other for a different purpose is admitted, the court -- if requested -- must restrict the evidence’s scope and give a “limiting instruction” to the jury on the evidence.

			1.	Example: Prior convictions; usually only usable toward credibility of a witness, but usually has an accompanying limiting instruction preventing the jury from using that knowledge for any other reason.

			B.	Ω106: Remainder Of or Related Writings or Recorded Statements (aka the Rule of Completeness)

			1.	Used typically in Civil cases for depositions;

			2.	When a writing or recording is submitted by one party, the other party may require related writings or recordings be considered along side it at the same time.

			C.	Ω411: Liability Insurance

			1.	Lack of liability insurance cannot be used as proof of negligence or other wrongful acts. Other purposes, however, can use this lack of insurance as proof: proof of agency, ownership, control, bias, or prejudice of a witness.

			IV.	Functions of Judge & Jury

			A.	Simple Relevance: Judge decides.

			B.	Conditional Relevance: When “relevance” turns on the “fulfillment of a condition of fact”, Ω104(b) provides that the judge only performs a screening function: When different answers are reasonable, the jury decides whether the condition is satisfied.

			1.	Example: A confession letter from Y is proffered as evidence, it has no probative value unless Y wrote or authorized it.

			C.	Weight: The Jury decides the weight of the evidence in their deliberations.

			D.	Sufficiency: Rarely will one piece of evidence be sufficient to fulfill the elements of a crime or civil action. The evidence in total (combined with the fact finders assignment of weight to it) determine the sufficiency or lack thereof of the evidence.

				Ω401, 402, 403

				Ω401: Definition of Relevant Evidence

				Evidence that is likely to prove a fact which will help determine the outcome of a case. Stated as a question: “Does the item of evidence tend to prove the matter sought to be proved?” This suggests evidence is only useful and relevant if it is related to a matter/issue involved in the case at bar. Judicial Standard of Probability to Review Evidence as Relevant: “More probable to prove a fact than it would be without the evidence.” Note: The FRE make no difference between Circumstantial or Direct Evidence.

				Ω402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

				Relevant Evidence is admissible, EXCEPT where limited by:

				The Constitution; (e.g. Unlawful Search and Seizure) Acts of Congress; The Rules of Evidence.

				Irrelevant Evidence is inadmissible.

				Ω403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

				If Relevant Evidence might be excluded if it creates prejudice, confusion, or wastes time. Judge has broad discretion with this rule. Uses a balancing test: Probative Value of Evidence vs. Harm Likely to Occur as a Result of its Admission into Evidence. Does the Probative Value of the Evidence substantially outweigh the danger of prejudice? Note: The language of 403 is language which favors admissibility; evidence is excluded “ONLY IF”... Note: This is a HUGE rule and crops up everywhere in the rules of evidence; is often called the “defense attorney’s best friend”. Note: One kind of “irrelevant evidence” that no judge is likely to exclude are the first questions a lawyer will ask their client about “where they’re from,” “what they do”, etc. This helps establish personalization of the client and narrative flow to the trial.

				Ω105, 106, 411

				Ω105: Limited Admissibility

				If evidence is admissible for one party but is NOT admissible to other for a different purpose is admitted, the court -- if requested -- must restrict the evidence’s scope and give a “limiting instruction” to the jury on the evidence.

				Ω106: Remainder Of or Related Writings or Recorded Statements (aka the Rule of Completeness)

				When a writing or recording is submitted by one party, the other party may require related writings or recordings be considered along side it at the same time.

				NOTE: The principle of this rule can be applied to other forms of evidence as well and under Ω401-403 and 611, judges apply this principle to other forms of evidence at their discretion. Usually applies to writings (but sometimes videos, etc.).

				Ω411: Liability Insurance

				Lack of liability insurance cannot be used as proof of negligence or other wrongful acts. Other purposes, however, can use this lack of insurance as proof: proof of agency, ownership, control, bias, or prejudice of a witness.

				Rules from Cases:

				Old Chief v. United States, 1997, p. 52: If evidence of past behavior is prejudicial to the matter being litigated and is unrelated to the current case, excluding it is justified and necessary; stipulating that a “prior conviction” had occurred to prove the present charge (which required a showing of a prior conivction) is sufficient and avoids the prejudicial effects of the details of that previous conviction. State v. Chapple, 1983, p. 69: When relevant evidence is NOT material to the issues being litigated, the probative value of the evidence will be outweighed by any prejudicial affect it may have on the jury and therefore should be excluded. Old Chief v. United States, 1997, p. xx:

				≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈ Not part of reading; in-class lecture only. Need to determine where to place in outline (at top of notes here, but may need to be placed elsewhere).

			I.	Privileges (FRE Ω501)

			A.	The party asserting the privilege bears the burden of establishing is exists and applies.

			1.	Privileges keep out relevant evidence.

			B.	A valid privilege applies at all stages of all actions, e.g. Grand Jury; at Bail; at a Motion Hearing; at time of Trial;

			C.	Privileges are disfavored, and thus, strictly construed;

			1.	If denied by the judge, they can be immediately appealed at the moment of denial;

			2.	Disfavored because it results in exclusion of relevant evidence;

			D.	5th Amendment Privilege: “No person shall be compelled in any criminal case to be a witness against himself.”

			1.	Can be invoked in any criminal proceeding;

			2.	Applies only to people and only to testimony (not documents, things, etc.);

			3.	Includes facially incriminating information or info that leads to incriminating information that forms the “last link” in proving guilt of a crime.

			4.	Can be invoked in a Civil Case if criminal liability would result based on the testimony.

			5.	Note: The 5th applies to government employees facing prospective job loss.

			6.	Special Rules for the Æ5:

			a.	Generally: A witness may NOT be cross-examined about the 5th and the prosecutor cannot comment on the invocation of the 5th in an argument;

			b.	Neither party may call a witness just to have the jury see the invocation;

			c.	A defendant may not selectively invoke; if he attempts to do so, his direct may be stricken OR it could get ugly...Must invoke at the beginning before giving testimony, not in the middle or the court will permit the ∆ to be exposed taking the 5th all through the rest of the questioning;

			E.	Attorney-Client Privilege

			1.	Purpose: To foster full and frank communication;

			2.	Burden rests on the party asserting the privilege;

			3.	Only those disclosures necessary to obtain legal advice are covered;

			4.	Only confidential disclosures are covered;

			5.	Must show steps that you took steps to keep things confidential to fulfill the burden (thus, the confidentiality taglines in most lawyer’s e-mail signatures);

			6.	The privilege belongs to the CLIENT, and the client may be a corporations or an organization;

			7.	The privilege may be shared; joint defense agreements;

			8.	Elements of the Privilege:

			a.	A communication;

			b.	Made between client and lawyer (or his representative/expert);

			c.	In confidence (no waiver);

			d.	For the purpose of seeking, obtaining, or providing legal services;

			9.	Privilege may be waived:

			a.	By mistake, design, disclosure to a third party, or of by conduct;

			b.	Ω502 provides a savings clause to inadvertent disclosures if reasonable steps are taken to prevent and correct;

			c.	An “advice of counsel” defense waives privilege, as does “ineffective assistance of counsel” - if a client sues a lawyer for malpractice, attorney-client privilege is automatically waived.

			d.	Crime-Fraud Exception:

			(1)	There is no Attorney-Client privilege when the client uses the attorney to engage in ongoing criminal activity - regardless of whether the attorney is a knowing participant in the crime;

			(2)	Prosecutors use “taint teams” to avoid any intrusion into the attorney-client relationship.

			10.	Privilege for Corporate Clients:

			a.	The privilege extends beyond the corporate “control group” to employees who:

			(1)	Speak to counsel for the purpose of obtaining legal advice;

			(2)	At the direction of a corporate superior;

			(3)	The subject matter is within the employee’s course and scope;

			(4)	Dissemination is limited to corporate need-to-know;

			11.	Exclusions from Attorney-Client privilege:

			a.	Fee arrangements and billing records;

			(1)	Person paying the bill (if not the client) does not have attorney-client privilege;

			b.	Client identity;

			c.	Communications regarding court dates;

			d.	Attorney observations;

			12.	Work Product Doctrine - Broader than Attorney-Client Privilege

			a.	Protects from Discovery materials prepared or collected by attorney in the course of preparation for possible litigation;

			b.	Criminal Work Product Rule: 16(a)(2)

			F.	Marital Privileges (Federal Common Law rules, Civil or Criminal):

			1.	Two Kinds:

			a.	Spousal Communications:

			(1)	Confidential Communications Privilege held between and by both spouses and covers confidential communications made during the course of the marriage. While the marriage may not last, the privilege survives. Both MUST waive marriage privilege to invalidate it;

			(2)	One spouse can assert the privilege against the other if one wishes to testify to prevent their testimony;

			(3)	Communications that are held between married couple and third party makes this a public conversation and not privilege.

			b.	Spousal-testimonial:

			(1)	Held only by the individual witness-spouse, lasts as long as the marriage;

			(2)	If a spouse sees the other spouse do something this is NOT, Confidential Communication and the other spouse can choose to testify to what they witnessed and the other spouse cannot assert privilege to stop it.

			(3)	Other spouse, in this case, cannot stop the testifying spouse from testifying.

			c.	Exceptions:

			(1)	The privilege does NOT apply to jointly undertaken criminal conduct:

			(a)	The Co-Conspirator exception will TRUMP marital privilege;

			(2)	Abused Spouse or Child: Also does not apply when the spouse or a child of the couple is the victim of a crime committed by the non-testifying spouse.

			G.	Psychotherapist-Patient (this does NOT include doctor-patient)

			H.	Priest-Penitent

			I.	Courts have been extremely reluctant to expand privileges beyond this core at the Federal Common Law level.

			J.	A few qualified privileges:

			1.	Informant Identity (usually non-testityfing);

			2.	Self-evaluative or self-critical analysis;

			3.	Intra-governmental communications that reveal deliberative processes;

			K.	Not Recognized as Federal Common Law privileges:

			1.	Parent-Child;

			2.	In-law;

			3.	Accountant-client;

			4.	Doctor-patient (Federal only).

				≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈

				Hearsay (pp. 105-110, 117-129)

			I.	What is Hearsay?

			A.	HEARSAY: An out-of-court statement offered to prove the truth of the matter asserted. Put another way, hearsay is the legal term that describes statements made outside of court or other judicial proceedings (by the witness or a third party).

			1.	Non-verbal: Intentional, non-verbal conduct can be considered hearsay. E.G. pointing a finger and exclaiming, “He did it,” or nodding the head ‘yes’, or shaking the head ‘no’ - standard non-verbal cues.

			B.	Hearsay Is Not Admissible, usually: Unless one of about thirty exceptions applies, hearsay is not allowed as evidence in the United States.

			C.	Why Exclude Hearsay?: (Court preference is Live statements, not out-of-court statements reported by third persons)

			1.	No Cross-Examination: Out of court statements are not subject to cross-examination, which is a key way of testing the truth of witness statements;

			2.	No Demeanor Evidence: The absence of demeanor evidence (evidence of the out-of-court declarant’s inflections, tone, appearance and what that conveys to the jury or fact finder);

			3.	No Oath: The absence of the Oath;

			4.	No Declarant: Often the declarant of the statement never appears in court and therefore cannot be cross-examined.

			D.	Why Prefer Testimony over out-of-court statements? -- The Risks of Hearsay:

			1.	Risk of Misperception:

			a.	The out-of-court statement of a witness may be misperceived; the accuracy of the perception must be tested in court and cannot be if the testimony is hearsay;

			2.	Risk of Faulty Memory:

			a.	Self-explanatory;

			3.	Risk of Misstatement: (aka the Risk of Ambiguity)

			a.	an out-of-court statement may not reflect the actual intended meaning of the witness; again the accuracy of the statement must be tested in court and cannot be if the testimony is hearsay;

			4.	Risk of Distortion / Insincerity:

			a.	an out-of-court statement cannot be tested under cross-examination for truthfulness, lying, or intentional deception.

			E.	When is a Statement Hearsay?

			1.	Ω801: A statement is hearsay when “offered to prove the truth of the matter asserted.”

			2.	Conversations to which you were a part of:

			a.	You may only testify to what you said;

			b.	Testifying to what the other person said, heard, or did is hearsay. Why?

			(1)	Because the other person isn’t present for cross-examination to test the truth of the witness statements.

			c.	NOTE: You cannot even say on the stand as a witness: “I said...”, because then you are attempting to put into the record an out-of-court statement that’s yours -- THIS IS HEARSAY! Instead, the examining attorney should ask not what you said, but rather what you did. E.G. “When you got there, what did you do?”, “What transpired next?” These are all questions about ‘what happened’ not what someone said.

			F.	When is a Statement NOT Hearsay? (An Out of Court Statement usable and NOT classified as Hearsay)

			1.	When a statement is offered for any OTHER purpose than to prove the truth of the matter asserted.

			2.	Non-Hearsay Statements:

			a.	Impeachment;

			(1)	Most often, a prior inconsistent statement (e.g., said once the car was blue, then later the car was red);

			(2)	Not offered to prove the truth of the prior statement;

			(3)	Offered soley to impeach the witness’ credibility.

			b.	Verbal acts;

			(1)	Where the statement itself has legal effect;

			(2)	Classic example: a Contract - which creates legal effects, rights, etc. // “I do.”

			c.	Effect on listener or reader;

			(1)	Showing that the response to what someone said, effected that person’s behavior (so long as it is not used to prove the truth of the matter asserted);

			d.	Verbal objects;

			(1)	Like a matchbook with writing on it; the writing on the object makes it a verbal object;

			e.	Circumstantial evidence of memory or belief;

			(1)	Statements that illustrate the memory of the declarant or the belief(s) of the declarant;

			f.	Circumstantial evidence of the state of mind;

			(1)	Cannot be used to prove a “fact remembered or believed” only to prove the state of mind;

			g.	Indirect Hearsay (Foundational Personal Information of a Witness):

			(1)	Usually permitted;

			(2)	Typically, foundational information like “where were you born”, “where were your parents born”, “when did they move to America”. These familial kinds of questions which rely on “hearsay of the family” are typically acceptable, unless they are issues germane to the issue at dispute.

			G.	Hearsay analysis: KEY QUESTION: Why is this evidence being offered? (Does it go to the truth of the matter asserted or for some other reason?)

			1.	Is it Hearsay?

			a.	An out-of-court statement, offered to prove the truth of the matter asserted. Ω801(a), (b), (c).

			(1)	Statement: An oral or written assertion, or

			(2)	Statement: Nonverbal conduct intended by the person as an assertion.

			(3)	Hearsay: Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

			(4)	Burden: The burden of establishing an assertion is present is on the party seeking to invoke the hearsay rule.

			2.	Is it NOT Hearsay?

			a.	Why is this evidence being offered?

			3.	Does it fall within an exception to the hearsay rule? (covered later)

			4.	In a Criminal Case - is it “testimonial” hearsay?

			a.	If fits within an exception, then cannot be used against a criminal defendant. Confrontation clause issues.

			5.	Does it pass the Ω403 balancing test?

			a.	Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

			(1)	Probative Value of Evidence vs. Harm Likely to Occur as a Result of its Admission into Evidence. Does the Probative Value of the Evidence substantially outweigh the danger of prejudice?

				Ω801(a), (b), (c) - Hearsay Definitions

				Ω801(a): Statement

				1) A statement is an oral or written assertion or;

				Note: The key here is that nothing is an assertion unless it is intended to be one.

				2) nonverbal conduct of a person, if it is intended by the other person as an assertion.

				Ω801(b): Declarant

				A declarant is a person who makes a statement.

				Ω801(c): Hearsay

				Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

				Rules from Cases:

				United States v. Check, 1978, p. 119: Testimony by one part of a conversation that makes clear the responses and assertions of the other, out-of-court participant is not allowable and a clear violation of the Hearsay Doctrine.

				Questions: So, in a conversation that YOU, personally, were a part of, you CANNOT report as an eyewitness what the other person in the conversation said to you during that conversation? You can only report what YOU said, otherwise it’s hearsay? Why is this the case (if it is)? Because the other person isn’t present for cross-examination to test the truth of the witness statements.

				How is Indirect Hearsay different from Direct Hearsay? Indirect is foundational, permitted. If it becomes crucial then it becomes subject to the rules of hearsay. How do you know “which particular” “truth of the matter asserted” is the one that is requires a Hearsay analysis. Will this be clear? Hearsay is about witness testimony of third parties and usually verbal. But visual testimony doesn’t run into this problem as hearsay verbal testimony does? Is that right? Yes. It’s about: What did he say versus what did he do? Say = Hearsay. Do = Permissible Testimony.

				≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈≈

				Hearsay 2: Continued (pp. 130-152)

			I.	Prior Statements of Testifying Witnesses

			A.	Ω801(d)(1) &(2): Statements that are NOT Hearsay (Repeated in Hearsay 3 section below)

			1.	Ω801(d)(1): Prior Statements are NOT hearsay under this rule if the declarant is present as a witness at trial and:

			a.	the Statement is inconsistent with prior statements/testimony;

			b.	is consistent with the declarant’s testimony, but is used to rebut a charge of lying or improper motive;

			c.	to identify a person after seeing them;

			2.	Ω801(d)(2): This is Codification of the Admission Doctrine. The following are not hearsay ONLY because they are statutorily defined as exempt from the hearsay rule. Admissions by a witness that is the party-opponent are not considered hearsay when:

			a.	Is the party’s own statement;

			b.	Where the party has manifested an adoption or belief in the truth of another’s statement;

			c.	Where the party gives permission (authorizes) another to make a statement;

			d.	Statement made by the party’s agent or servant;

			e.	Statement by a co-conspirator in a conspiracy.

			II.	Hearsay & Nonhearsay: Statements with Performative Aspects

			A.	Statements that are also actions;

			III.	Non-Declarative Statements

			A.	Usually subject to the hearsay rule anyway, because:

			B.	“There is a red barn.” Is a declarative assertion subject to the hearsay rule.

			C.	“Is that barn red?”, and “Look at the red barn.” are not declarative assertions in speech, but for the purposes of the hearsay rule, their effect is to assert something. Therefore, they are subject as well to the hearsay rule.

			D.	Implied statements & Assumed Statements: Even statements that do not expressly assert something may contain an implied assertion and qualify as hearsay. In addition, if the speaker assumes something to be true in the statement, it can imply an assertion. Ex. “I didn’t tell them anything about you.” Supreme Court has said that a statement is hearsay when offered to prove something assumed by the spearker.

			IV.	Lying & Hearsay

			A.	Most courts do not apply the hearsay rule to lies; so untruthful statements are usually admitted at trial;

			B.	This is because they are not submitted to prove the truth of anything asserted (usually), but to show they are false;

			V.	Statements Used to Indicate State of Mind = Not Hearsay

			A.	Out-of-court non-hearsay statements which circumstantially illustrate a state of mind (regardless of the truth of the statement) can be admitted as non-hearsay;

			1.	Example: “I am Napoleon Bonaparte” would be a relevant, non-hearsay statement in a sanity hearing.

			2.	E.G., Betts v. Betts.

			VI.	Emotional Reactions = Not Hearsay:

			A.	Not usually hearsay;

			B.	Typically viewed as non-assertive conduct and thus not a “non-verbal” assertion;

			C.	Rarely, there is sometimes non-assertiveVERBAL conduct;

			1.	E.G., someone is hit on the thumb with a hammer and exclaims, “Ouch.”

				Rules from Cases:

United States v. Singer, 1983, p. 136: Written documents submitted to assert the truth of their contents is hearsay. However, written documents submitted to imply behavior or belief of a party or witness is NOT hearsay.
Betts v. Betts, 1970, p. 147: