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Spring 2005, Prof. Weems EVIDENCE (just what he talked about) Order of Trial: Voir Dire; Opening; “What says the plaintiff” (are you ready?); “Rule invoked?”

• P’s case in chief: Direct, tender-Cross, redirect (only new stuff from cross), re-cross o On direct,Пmust ask of each witness everything he wants to get, can’t wait for re-must ask of each witness everything he wants to get, can’t wait for re- direct to ask the “Million Dollar Question.” (note, D must object)
• After Пmust ask of each witness everything he wants to get, can’t wait for re- rests, D moves for directed verdict (P gave no prove as to essential element).
• D’s Case in chief: Same, except now the defendant has direct. After, Пmust ask of each witness everything he wants to get, can’t wait for re- may move Dir. V.
• P’s Rebuttal: ONLY if new issues were brought up in D’s case in chief. o P can’t wait to call a great witness that he could have called earlier R 615 (p.4): Judge or attorney may “invoke the rule.”
• A witness that is going to (may) testify may not listen to testimony of others (can after). o Purpose -Witness may conform to testimony of other witnesses.
• 3 Exceptions: o Party who is a “natural person” may stay (i.e.-P/D). o Corporate party may designate a representative to sit in for them. o Expert - Someone “Whose presence is shown to be essential to the party’s case.”  Must notify judge that expert will use info to help in his testimony.
• Violation: (usually a violation is inadvertent) o Extreme: Ct can exclude the witness’s testimony (usually, only if intentional).  L can’t tell witness how others testified. Violates rule. Thin line-prep OK. o Usual (i.e.-inadvertent): Opposing allowed a “very stringent” cross.  Let jury know Wit shouldn’t have been there. Ok to raise inferences. COMPETENCY : R 601-606 (P. 1-6) General: Is Wit competent to testify at all? Not-can’t even give name. Special: Is Wit competent to testify on a certain subject (i.e.-does he have personal knowledge?) Fed. R 601: Everyone is competent to testify EXCEPT as provided for by rules (602-606).
• In a civil case where state law controls, Fed Ct looks to state law regarding competency.
• Therefore, Diversity Case, Judge looks to MRE 601-606. 602-606 are the same. MR 601: All Wit are competent EXCEPT:
• Spouses of parties. Пmust ask of each witness everything he wants to get, can’t wait for re- or D’s spouse may not testify w/out consent of both parties. o NOTE, this isn’t the spousal privilege. In criminal suit, S Ct has said that the spouse of the defendant may declare the privilege, but defendant can’t invoke it.
• 3 Exceptions: o Party may introduce spouse even if spouse doesn’t consent. (Seems crazy to do) o Hubby may be Wit against wife if it is a controversy between them. (broad).  Crim. Pros-if wife is “mad” at hubby, she can testify. If not, both consent. o Spouse may be compelled to testify against other in crim pros for:  Crime against child, child neglect, desertion, or abandonment. R 602: Personal Knowledge : Wit must “actually perceive w/ his senses” to testify. (Special). R 603: Every Wit must swear/affirm testimony or is incompetent. Wake conscience; penalize. R 604: Interpreter -Can’t speak English, doesn’t make you incompetent. R 605: Judge can’t testify in case he’s presiding over. R 606(a): Juror can’t testify in case where he’s a juror. (never happen b/c voir dire).

(b): Inquiring into validity of the verdict: Juror can’t give testimony/sworn affidavit to cast doubt on verdict (i.e.-jury talked about improper things-D’s $/residency). EXCEPTIONS: 1) Can testify to tell of improper conduct (bribes/threats); 2) Extraneous prejudicial information was brought to the jury’s attention (i.e.-going to see wreck scene). Children: Not automatically competent. Judge Qs in front of jury. Usually allowed & up to jury. Allowed if: 1) child can perceive/remember facts, 2) answer intelligently, 3) comprehend truth L Testifying in case: No RofE against it; therefore, allowed. BUT, there may be ethical penalties. Old C/L stuff that is dead:

1. Being religious is no longer req’d
2. No rule against felons testifying (you can use the fact that Wit previously perjured himself for impeachment purposes.) Previous perjury won’t make you incompetent.
3. Dead man statutes no longer apply. (Person claiming against an estate couldn’t testify). Ch. 2: DIRECT EXAMINATION (P. 6-7) R. 611, 12, 14 R 611(a): Ct shall exercise reasonable control over mode/order of testimony.

• Narrative exam: “What happened on May 13, 2004?” *Some judges won’t allow it. o This allows the witness to “give a speech.” Great (more interesting) if witness is a smart, good speaker. Problems -may blurt out harmful stuff on accident; leave out. o Opposing may object. “Objection, this calls for a narrative response.” (know J).
• Specific exam: Walk Wit through, Q by Q. Ct may force you to do this, or you may want to be very careful about what the Wit says. This will never be objected too. (c): Leading Qs: Q that suggests to the Wit the answer that the L wants to get.
• There are BIG differences of opinion as to what is leading. o Some think any Q that has mentions the subject matter of what you’re look for (i.e.-Was there a stop sign?) Therefore, know J’s opinion b/f trial. o To avoid asking a leading Q, start withWhat, Where, Why, When, & How.
• Rule: Nature of Witness’s relationship with attorney is the touchstone. o If Wit is friendly with the attorney, L can’t ask leading Qs. Wit agree to help L. o Direct: Therefore, you usually can’t ask leading on direct/re-direct.  Can ask leading if you are calling someone aligned with the adverse party. (i.e.-adverse/hostile witness. Someone who hasn’t been willing to help youjust use leading to get ONLY what you need and get out).  Adverse-opposing, opposing’s e/ee, etc. (presumed unfriendly)  Give Ct notice. “Your honor, we would like to call X as an adverse Wit.”  Opposing party must object at that time. Up to J’s Discretion. You may not want to call him if you can’t use leading Qs. o Cross: Usually can ask leading Qs on cross. Presumed to have a bad r’ship. You don’t have to worry about the Wit trying to help.
• Exceptions (When you can ask leading Qs)-preliminary Qs (name, etc) o Adverse/hostile witness: Supra. o Development of Testimony: Leading allowed on direct to develop testimony.  Children: “And then he hit you?” Leading may be the only way to get testimony. (Up to the Ct).

 Reason: Personal knowledge is important. We would like it w/ non-suggestive Qs, but if not possibleleading OK.  Elderly: Same.  Refreshing memory of a witness. Ask Judge o Laying a foundation for physical evidence (photos): “Is this a fair and accurate representation of real life?” Uses exact words req’d to be admissiblestill OK. Argumentative & Misleading Questions :

• Misleading: Q requires the Wit to assume something that he has not answered. o I.e.-“How long has the rd been open to the public?” When Wit hasn’t said it was ever open to the public.
• Argumentative: Instead of trying to get new evidence, L challenges what Wit said earlier. o Usually comes up on cross. “Do you really expect people to believe that?” R 614: Judge Calling: Rare, but the Judge can call and question witnesses. Refreshing Memory of Witness : Often, a Wit may simply forget something. He can’t testify if he can’t remember.
• The law usually permits you to refresh the Wit (no “hard line” against it). HOW?

1. Leading Qs (ask the Judge if you may develop testimony).
2. Show the Wit something to refresh memory. a. Inadmissible refresher: Judge will allow you to use an object (i.e.-photo) to refresh the Wit. Memory even if it object is inadmissible. ( Livingston ). b. You can’t ask, “What does the report say?” Ask, “Does this help you recollect what happened?” If yestestify. If noWit is done (can’t answer-not in evi).
3. Wit. May bring writings/files to the stand. (i.e.-police report, medical files, etc.) R 612: If something is used during testimony to refresh memory, the opposing side has an absolute right to see it. Opposing can introduce it into evidence. If something is used b/f trial to refresh Wit’s memory, Judge may require giving it to the opposing party (Ct’s discretion).

• Fed: only applies to “writings,” but it is probably as broad as the state rule. Ch. 6: INTRODUCING AND EXCLUDING EVIDENCE (p. 8-13) Generally, if an objection to the introduction of evidence is waived if not immediately made.
• Exception: Lack of personal knowledge (R 602). Can bring up later by mtn to strike. Introducing into Evidence : (4 steps)

1. “Your honor, we would like to have this marked for identification?” (P-1, P-2, etc). a. No grounds for objection. It just puts it into the record. It isn’t in evidence yet. b. Putting it “in the record” is the “offer of proof” for physical evidence.
2. Show the opposing side the object. “Let the record reflect.. .”
3. Show or hand the object to the Wit and then, ask the Qs necessary to “lay a foundation.” a. The document must be authenticated (it is what the L says it is) by the Wit, & b. You must show that the document is relevant.
4. Offer the object into evidence. “We offer P-1 into evi.” a. May be objected to. If allowed, clerk gives it an evidentiary #. Appealing the Exclusion of Evidence :

R 103: Harmless error rule - To have exclusion reversed, you must show the exclusion “affected the substantial rights of the party.” Harmless if same evidence was correctly supplied by another. (a)(2): Offer of Proof : To appeal the exclusion of evidence, one must 1) make known the substance of the evidence that was to be offered, OR 2) the substance was apparent (RARE). *If there is no offer or proof, the App Ct can’t reverse for exclusion of evi. May be harmless. Practical Example (can’t appeal if no offer of proofapp ct can’t find an error w/out proffer).

• First, after the opposing side’s objection is sustained, say, “We would like to make OoP.” o The Ct can’t stop you from making an offer of proof.
• Judge excuses the jury. You then should ask, “Would you like me to Q Wit or read it?” o Questioning is just like direct exam. Reading is just you reading into the record.
• Say you conclude your offer. You may then want to ask the Judge to reconsider. He may. Objections : 103(a)(1): T Ct errs in admitting evidence, to object you must, a. Timely object (RPL would have objected then), AND i) If the Wit gets the answer out b/f you object, make “mtn to strike” ii) Same if the Q doesn’t become objectable until later. b. State the specific grounds for the objection (unless it’s apparent - don’t rely on it). i) Purpose-help judge & let Atty. know what he did wrong (restate). ii) “Incompetence” isn’t grounds for obj. Only applies to Wit. iii) If you objected, but you used incorrect grounds for the objection, even if the testimony should have been excluded, Ct has the right to deny your objection. If obj. sustained, but wrong groundsOK. Continuing Objection: If you object to a certain topic and the Judge overrules, you can ask the judge for a continuing objection to that topic so you don’t have to object after each Q. Plain Error Rule: Even w/out an objection, the S Ct can reverse if egregious error. Motions in Limine : Mtn made b/f an issue arises at trial. Ask for an early ruling. Granted when: 1) Clear that the evidence was inadmissible, AND

2. The very mention of the subject will prejudice a party (i.e.-polygraph)

• 2 is required b/c even if originally inadmissible, the other side “may open the door.”

• If your Mtn is denied (evidence will be allowed) you don’t have to object again at trial. Depositions : Sworn, recorded, and transcribed interrogation of a Wit by a L out of court.
• 4 people will be therestenographer, deponent, Пmust ask of each witness everything he wants to get, can’t wait for re- atty., D atty.
• Sometimes, the deposition will be read in court. The actual written depo can’t be introduced into evidence. The jury can’t read all the other witness’s testimony; therefore, they shouldn’t be allowed to read the deponent’s (could if in evidence).
• Objections: Usually, all objections except to the form of the question will be preserved. o Form: leading/misleading; Object in depo. Atty. can rephrase. If you don’t change the Q, the Judge decides at trial if it is misleading, etc. o Substantive: Don’t have to make these in the depo. Judge decides when reading. Preliminary Questions of Fact Arising on Objection R 104(a): If admissibility of evi. Depends on a certain fact being true, the Judge decides the Q.

• EX : Excited utterance exception to hearsay: The evidence will be allowed over the objection only if the speaker was truly excited. Judge decides if truly excited.
• EX : Dying declaration exception to hearsay: Same, judge decides if truly thought dying. R. 104(b): Relevancy of evidence is conditioned on the truth of some Q of fact.
• Judge decides whether a RPP could conclude that [the condition occurred].
• EX: Sam Foyt must have been in his scope of E/ment for it to be relevant that he was driving the truck that hit the plaintiff. Judge decides Failure to Object : If you don’t make a proper objection, the evidence is allowed.
• This means, that it can be considered by the jury AND attys. can argue it in closing. R 103(c): In jury cases, the proceedings shall be conducted to the extent practicable to prevent inadmissible evidence from being suggested to the jury. (I.e.-Sidebar). Waiver of Objection : § 55 (p. 11). Failing to object is obviously a waiver for that Question.
• Failure to object to previous similar evidence: If you failed to object to a Q, you can still make later objections to inadmissible questions concerning that subject matter; BUT, you will not succeed in having the previous answers stricken from the record/ o I.e.-In Foyt, asking cop about JP hearing may be inadmissible, but P allows 3 questions in, finally he’s had enough and objects to the 4th^ question.  P atty. hasn’t waived his objection. BUT, can’t strike first 3 answers.
• Similar evidence by objector: o D objects to testimonysustained. D then brings up in his case in chief. Waived.
• “Law of the Case” Rule: Once T Ct has ruled on something, parties can try case under the assumption that the ruling will stand. (Just giving respect to J’s ruling). o Magee v. State : D had 4 priors. D made mtn in limine to exclude. T Ct-“if he testifies, P can ask about them.” Therefore, D brought it up. Can D appeal denial?  Yes, D was relying on “law of the case” and trying to take the “sting out.” Effect of Introducing Part of a Writing/Conversation : § 56 (p. 12)
• Old Rule: If one side introduces part, opposing may introduce other relevant parts. R 106: A party puts in part of the writing, the adverse party may require the introducing party to introduce any other party, which out of fairness ought to be introduced, at that time.
• I.e.-depoP-”we will read p. 9-11.” D-“Your honor, we would like them to read 5-15.”
• Kneipf : Wife cut hubby, but there was Q as to whether it killed him or drinking isopropyl. o P objected to introduction of the autopsy by the defendant b/c the Dr. was there to testify about it in person.  NOTE, this was proper. If autopsy allowed, it would give “undue prominence” to Dr’s testimony b/c jurors could read it. o But, on D’s cross, D put in one page out of the Dr.’s autopsy. This was OK b/c the Dr. was using it to refresh his memory. (R. 612). o S Ct said, and D argued, the “rule of completeness.” Since D offered, we should be allowed to enter other relevant info. Opening the Door (fire w/ fire) : § 57 (p. 12). *If P puts on evi. Of subject A, D gets to.

Connecting Up : § 58 (p.12) Preliminary Questions

• R 104: When relevancy of evidence depends on certain facts needing to be proven, the Ct will allow the evidence as long as offeror guarantees the evi will be supplied. Limited Admissibility : § 59 (p12)Evi. Relevant for 2 points, but Admissible for one point. Whittley : P sued City for having dangerous trash bins. (negligence)
• 2 issues: 1) bins are dangerous; 2) D knew/should have known dangerous
• A letter to the City’s Engineer was relevant to both points; BUT, it will be considered hearsay to issue # 1. OK for issue # 2.
• T Ct can: 1) let it in, 2) keep it out, or 3) let it in and give limiting instruction.
• Limiting Instruction: “jury, you may only use this evi to decide if City was on notice, you may not use it as evidence to decide if the bins are dangerous.” (J may poll jury).
• Other stuff: o If an atty. violates the limiting instruction at closingmay declare mistrial. o P called the engineer as an adverse witness under 611(c) to lead. Ch. 3: OPINION TESTIMONY

1. Lay Wit Opinion: Opinion of someone not “qualified” as an expert by the Ct. a. We want the facts, based on personal knowledge from lay wit. But, sometimes it is hard to separate fact from opinion. (i.e.-things wit can’t know: speed, etc. b. C/L: Lay person could only give opinion testimony about: i. Speed, distance, time, soundness of mind, and sobriety (or lack thereof). ii. Purpose: We only wanted the most concrete evidence possible, and unfortunately, an eyewitness opinion is as concrete as it gets for those. c. R 701 (today): Lay opinion is allowed if (can’t be based on scientific knowledge): i. Based on personal knowledge AND ii. The Opinion is helpful to the jury in understanding testimony. d. The law still prefers the Concrete, so you may ask (or have too), “Why did you form your opinion about the bridge?” Note, this is better than opinion anyway. e. Ultimate Issue: Regardless of R 704, Weems says Lay can’t give an opinion as to ultimate issue. (i.e.-prod liab-can’t say, “prod defective.” i. Object by saying, “Your honor, this op isn’t helpful to the jury.”
2. Expert Testimony: R 702 : Expert can help jury understand science, tech, etc. & is qualified by knowledge, skill, experience, training, or edu, he may testify op. if it is 1) based on sufficient facts/data, 2) product of reliable principles/methods, and 3) wit applied them to facts. a. 3 types i. Regular lay testimony (Einstein saw a wreck). ii. Expert Fact Testimony: Opinion about things he observed. I.e.-Dr. giving testimony about injury. Requires special training, so expert testimony. iii. Expert Opinion Testimony: Expert telling the jury the inferences to draw from evidence. b. Qualifying the Wit i. Get him on the stand and ask him all the impressive things about career. I.e.-edu, exp, prof. assoc, publications, treat similar. Don’t stipulate. ii. “Your honor, we now tender the wit as an expert.”

1. Now, the opposing side can voir dire to try to disqualify. 2. Expert just must have more skill, knowledge, etc than ave. juror. a. Not required to be the “best witness.” c. “Reliable” principles or methods: i. Old Test Frye : “Has theory been accepted in the scientific community?” ii. Daubert - Current: This has been followed by R 702. It increases the role of the Trial Judge as the “gatekeeper.” Gives more power/factors to the J. 1. “Does the theory reflect TRUE scientific knowledge?” d. Actual Opinion Testimony: What inferences to draw. i. Tradition hypo: Assuming X, Y, Z, A, etc... do you have an opinion based on a reasonable medical/scientific probability (not possibility- must win by a PPE) 1. Problem: all facts that you tell him to assume must have been testified to earlier. Also, it took up a lot of time. Finally, opposing can argue you left out facts to assume. 2. Some still want to use to “sum up” their case. ii. R 705 : Expert may give his opinion w/out 1st^ disclosing the underlying facts, unless the Ct requires it. 1. This means you no longer have to use a hypo. 2. Ask, “Have you studied the wreck? As a result, do you have an opinion based on reasonable scientific prob.? iii. R 703 : Facts/data used to base opinion on can be provided b/f or during the hearing. 1. Change : If evidence relied upon is a type that experts in that particular field reasonably rely on in forming opinions, it can be inadmissible. And opinion still allowed. a. I.e.-GP Dr. using a specialists report to deciding P/s and future medical expenses. (ordinarily uses). b. Old law-specialist would have to come testify first. 2. Problem: Has potential to allow rank hearsay in. I.e.-Arson investigator normally uses statements by others to form his opinion ... neighbor next door can say, “I saw kids!” 3. Fed Rule’s Addition : Proponent of the evidence can’t disclose to jury an evidence otherwise inadmissible Unless the probative value

prejudicial effect. (Miss. Will likely follow, hasn’t adopted). a. Accident reconstructionist relied on unsworn stmts of witnesses as to how fast the D was driving to make his opinion of D’s reaction time. Pure hearsay, J said it “wasn’t helpful to the jury.” 822 so. 2d 1061. iv. R 704 : Ultimate Issue: Lay wit still can give opinion on ultimate issue. 1. Experts can give evidence as to the ultimate issue, but this likely won’t extend to “Is the Defendant Negligent?” a. Negligence is a legal question. Expert isn’t legal expert. v. OTHER MISS CASES: 1. Sobriety-800 So. 2d 1193 (and Negli ultimate issue.)

2. Nurse- qualified to give SOC of nurse, not if breach caused stroke. 3. Engineer-couldn’t testify as to effect of force on body. Ch. 16: RELEVANCY : p. 18-23: Something can be relevant and inadmissible. Irrelevant, Inad.

1. The fact must be relevant to a disputed issue in the case. a. B/f notice pleading, used the pleadings to decide issues. NOW-pre-trial conf. b. “Materiality” is no longer used. In the rules, though. Not material if not an issue.
2. Direct v. Circumstantial Evidence a. Direct: Evidence based on personal knowledge that says a disputed fact happened. i. I.e.-“I was going 55.” Or “Foyt was driving 80.” b. Circumstantial: Evi. of a fact from which one can infer the another fact. i. I.e.-Kent saw Foyt going 80 3 mi. b/f wreck. Infer speeding at the wreck. c. Difference: Direct is always relevant; circumstantial may be irrelevant.
3. R 401 : Relevancy Defined. Evi that has any tendency to make determination of the action more or less probable. a. I.e.-You believe 60% chance Foyt was speeding. Fuzz-R, late-R, $-irrelevant. i. Ask: “In the mind of a Reasonably Intelligent Person , will this new fact increase or decrease that % chance?” (J’s intelligence, really.) b. Doesn’t have to change the % a lot, just some.
4. R 402 : Relevant is admissible except as provided for by Con, Congress (not MS), MRE. a. NOTE, If there isn’t a disputed issue, it isn’t relevant. b. BUT, photos are usually always relevant. Either controverted evi or supports test.
5. Exclusion of Relevant Evidence: 2 categories1) General Rule (403) & 2) Specific ones a. Don’t use all objections at once. First, “not relevant.” Denied-then, R 403. R 403 : General Rule: Relevant evidence may be excluded if the probative value is substantially outweighed by the danger (costs) of 1) unfair prejudice, 2) confusion of the issues, 3) misleading the jury, 4) consideration of undue delay, waste of time, or needless repetition of cumulative evidence. i. “The filter through which all evidence must pass.” b. Unfair Prejudice: NOTE, the prejudice must be “unfair.” And Substantially Outweigh the probative value. (Not just, “it hurts my case too much.”) i. You must state “how”/”why” evidence is unfair. It is:

1. Unfair when there is a danger that the jury will use the evidence in a way that the law of evidence says the evidence can’t be used. a. Kniep : Arouse Emotion: Photos of bloody body will arouse anger & jury will take it out my D. (D argue). b. Verdict can’t be based on emotion. Usually still allowed. Prosecutor-“Some unfair prej., but doesn’t Subst O.” c. Confusing the Jury: Foyt wants evi of Williams 3 wrecks. It is Relevant. 403? i. Probative value Subst. Outweighed by the danger of confusing jury? ii. D Arg: P brings this up, I get to put on evi saying not my fault; thus, the jury has to hear about 4 wrecksconfusing. d. Waste of Time: You can put on cumulative evi about serious issues. No overkill.

6. Specific Exclusion of Relevant Evidence: a. R 407 : Subsequent Remedial Measures. Measures taken after the injury, which might have prevented the injury. Inadmissible to prove negligence or culpability.

But, measures “may be” Admissible to prove ownership, control, or feasibility of precautionary measures. (Up to the Judge... R. 403). i. It keeps VERY relevant info out. Why? Policy-We want to promote corporations to fix problems. They wouldn’t if allowed. ii. Admissible EX: Wreck at RR. RR then cut the grass. Cutting not Admissible to prove Negl. But, D argues no control of grassadmissible.

1. This is an example of a dumb D. The Ct will give a “limiting instruction” telling the Jury they can only use it for one thing. a. On Closing, must limit that evi to that one thing or mistrial. b. After your R 407 objection is denied, you can still argue R 403. “Probative value Subst. Outweighed by the chance of unfair prejudice.” Chance jury will disregard limitation. i. Usually, J will overrule 403, but he may sustain it if the P has other evidence of control.
2. Tandem wheel truck: Not for negli., allow to show who caused rut. b. R 408 : Compromise & Offer to Compromise: Not admissible to prove liability or invalidity of a claim.
3. Old rule: watch what you say in negotiations  could use stmts.
4. Today: Stmts made in negotiations aren’t admissible. Pro-settle. ii. Just b/c something was mentioned in settlement conference, doesn’t mean it is now not discoverable. iii. Statements made in a settlement conference are admissible to prove bias of a wit (I.e.-Wit settles with D, then testify for him). c. R 409 : Offer to pay or pmt of medical expenses is inadmissible to prove liability. i. Only protects offer and pmt; other stmts are fair game (“It was our fault.”). d. R 410 : Criminal law equivalent to R 408. i. Inadmissible: 1) plea of nolo contendre, 2) w/drawn guilty plea, 3) stmts part of plea agreement, which is later withdrawn (or negotiations for plea) ii. Admissible: A guilty plea NOT withdrawn. An admission. Can Explain.
5. This also holds true for evidence of a plea in a civil trial. (Foyt). e. R 411 : Liability Ins.: Inadmissible to show negligence/culpability. It can be used to show control, ownership (I.e.-“you didn’t own it, then why did you insure it?”), bias (I.e.-Insurance guy did an investigationP’s atty. can bring up ins.-bias), etc. i. Deliberately done: the J may declare a mistrial. (Irrelevant and jury can’t put it out of their mind; they will be more likely to go for P). ii. Inadvertent: Witness accidentally blurts it out, tell Jury to disregard. Ch. 17: Character Evidence : A person’s (P or D’s) personal history. (p. 24-31).

1. Definition: Evidence to prove that a person has (or doesn’t have) a certain character trait or propensity to do (or not do) a certain thing or type of thing. a. Shows that a person is (or is not) a particular type of person. b. One could use it to infer that the person is one who does a certain type of thing.
2. 3 Ways to put on Character Evidence: a. Reputation: Put on witness to testify about person’s reputation in the community. i. 1) Live in cmty w/ D? 2) Familiar w/ D/Rep? 3) What is the rep (violent)?

1. 1 and 2 are just showing personal knowledge.

b. Opinion: Wit knows the D, and has an opinion as to his character (peacefulness). c. Specific Acts: Wit actually has personal knowledge (saw) D exhibit violence. i. Infer from past acts, that the person has a propensity to certain actions.

3. “Character in Issue” Cases: § 187: Only implicated by R 405. Can use all 3 ways. Weems can’t think of ANY criminal “Character in issue” cases. a. A person’s character/propensity to do something is an essential element of case. b. Ex: Negligent entrustment: G’ma let 16 yr old drive. Wreck w/ P. P must show that G’ma knew girl had propensity to be bad driver. (Same for negligent hiring). c. Ex: Libel/Slander: D said, “P is a bad lawyer.” Truth is a defense. Therefore, D can show (by past acts), character traits showing that P was a bad lawyer. d. NOT: “Foyt liked sports cars.” Essential element was whether he sped THAT day.
4. R 404(a) : Evi of character is inadmissible to show that the person acted in conformity with his character/trait on a particular occasion. a. Ex: Foyt has a character trait of liking fast cars. Inadmissible to show he conformed to that trait by speeding on the day of the wreck (same for fuzz buster) i. Can’t show Foyt sped on that occasion by showing he is the type to speed. b. This goes both ways. P, nor D, can bring it up. Can’t show good or bad character. R 404(a)’s 3 Exceptions : (We’ll talk about the 3d one later). a. R 404(a)(1): Character of Accused: D can put on evidence to show that the D “isn’t the type of person” who would do such crime. i. Trait must be “pertinent” to the crime accused (not  ‘he’s good’)he’s good’)

1. EX: Violent crime-peaceful is pertinent. Fraud-honesty. ii. How may D put on this Character evidence? 1. Reputation and Opinion testimony (NO specific acts) iii. After D puts on Character evidence, what can the Pros do? (Pros. can’t put on character evi first (during case in chief)). 1. Cross Exam: Pros. can inquire into specific acts a. VERY limited. “You testified that D had a peaceful reputation, did you know he beat up X?” i. Only to rebut trait Wit testified about. ii. Don’t call char wit w/ dirt on D. b. Must have a GF basis to believe what you ask is true. Can’t get into facts, just y/n Q. 2. Pros. “Case in Rebuttal”: D opened the door for the Pros. to call Char. Wit. Pros can only ask for reputation & opinion a. D, on cross, can ask about specific instances b. R 404(a)(2): Character of Victim: It really will only come up when the D has been murdered and is asserting that the Victim was trying to hurt him (show V violent). i. Usually, the character of the V is irrelevant. ii. Who can call? The D must bring this type of evidence up first. Either by: 1. Putting on Wit to say that V had reputation/opinion of aggression. 2. Arguing the V forced D to act in self-def. (Pros can rebut w/ char). iii. Fed. Rule : If D puts on evidence of the V’s character, the Pros can then put on evidence of the D’s character. Fed R 404(a)(1).

5. R 404(b) : Evidence of other crimes, wrongs, or acts (good or bad) is inadmissible to prove character in order to show the D acted in conformity with past acts/crimes.

a. This evidence may be admissible, however, to show: i. Motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. (Note, these are usually only required in Crim cases.) b. West : D on trial for murdering a man for his car in Bovina. 24 hrs earlier, he had murdered 2 people in GA and he needed a new car... should that be admissible? i. D’s 1st^ Obj: 404(b)-“This is inadmissible Char Evi of past acts for the purpose to show that the D is a murderer and conformed in Bovina.” ii. Pros response: “It isn’t to show he conformed to trait, it’s for motive.” iii. D’s 2d: “OK, it is true that the evidence would be admissible to show motive, but the legitimate probative value of it is substantially outweighed by the unfair prejudice it will do to D.” Here it was.

1. Unfair: Jury will use it to infer that D has a murderous trait & that is unfair b/c 404(b) says crimes can’t be used for that purpose.
2. The fact that the pros had other evidence of motive made this particular evidence’s probative value less important. Sustained. iv. Side note: Pros. brought this up in opening. If the J later refused to allow this evidence in, D would be entitled to a mistrial. Be careful in opening. c. Hoops : Pros wants to put on evidence that D & V were in competing gangs. i. D Obj.(404(b)): Joining a gang is an act, & it is inadmissible b/c it shows character and will be used to show that the D conformed to that trait. ii. Pros-Motive. iii. D 403-The ‘he’s good’)legitimate probative value is subst. outweighed by UP.’
3. UP-Jury will use this as evi that he is a “bad guy.” d. Hughes : 19 yr old committed suicide by running in front of truck. Driver/corp D. i. Evidence showing that cop did not write a ticket for D was inadmissible.
4. This is reversible error b/c it shows the officer’s opinion as to the liability (ultimate issue) of the case. Lay Wit-R 701 (not helpful). a. If qualified expert, cop could’ve given opinion.
5. Also, it violated R701 b/c it wasn’t based on his “perception.” ii. Should D have been allowed to bring up decedent’s prior suicide attempt?
6. P Obj.-R 404(b): P showing decedent had propensity to suicide.
7. D: Using it to show intent and absence of mistake. (Overruled).
8. P’s: It might be relevant, but (403), prob val subst. outw’d by UP. a. Jury may think decedent type to commit suicide-improper.
9. Ct-allowed the evidence in. iii. Illegally obtained evidence: Cop had BAC taken of the decedent, but by law, he had no authority to get the BAC. Could D still use the evidence?
10. YES, D wasn’t responsible for the illegally obtained evidence. If criminal/quasi criminal trialNO, never admissible if illegal.

6. Other Cases a. Moore , 856 So. 2d 621: D accused of selling beer to minor. Could P bring in evidence that D had previously (& after)sold beer to minors on other occasions? i. 404(b): Showing the D acted in Conformity to a propensity b. McCafferty v. Puckett : D-chiropractor-wanted to put on evidence that no one had ever filed a complaint against him.

i. 404(a)or(b): Showing conformity w/ the propensity to be a good Dr. c. SE Med. Center , 822 So. 2d 323: P says his ins. Salesman was negligence. Can he put in evidence showing that this particular agent had been wrong b/f? i. NO. 404-propensity to carelessness, conformity. (Note, if this was a defamation suit-i.e.-“bad insurance salesman” specific acts  OK). d. Redhead v. Entergy : Owner of land sued Entergy b/c of fire. After fire, D cleaned power lines. P said, “We’re offering to show control, not negligence.” i. Ct said, while that will get you around R 407, D never contested control; therefore, it wasn’t an issue (not relevant).

7. Sexual Assault Rules : p. 29- a. In the old days, rape was a capital offense, so the D could bring up the V’s sexual history through reputation/opinion testimony. Discouraged women, hence 412. 412 : Testimony in the form of reputation or opinion testimony is inadmissible. a. Specific acts testimony may be allowed to show: i. Past sex w/ people other than the D upon the issue of whether the accused was or was not the source of semen, pregnancy, etc in V. ii. Past sex w/ accused if given w/ respect to the issue of whether V consented to the sexual behavior with which the D is accused. OR iii. False allegations of sexual assault by the V. b. (c)(1) & (2) then set up an elaborate screening process. c. NOTE, MS’s only applies to criminal suits. Fed applies to both. d. MS - Civil Actions stemming from a criminal conviction: i. P only has to put on evidence of damages. D already found liable. ii. What if D acquitted? Acquittal isn’t conclusive of innocence. V can sue. Fed R 413 : Sexual Assault in criminal case (MS hasn’t adopted 413-15 b/c of 404 conflict). a. Evidence of the defendant’s commission of other sexual assaults is admissible. i. No conviction is req’d. Just find a Wit to say, “he raped me.” ii. This is clearly using past acts to show that the defendant conformed w/ a character trait. Thus, it contradicts 404 (many think D can’t get fair trial).

1. Drafters thought that sexual assault and molestation were “compulsions” and not mere propensities. iii. In Miss.: Male leader of girl-scout troop molested several girls. Only tried for one. Pros could not bring up evidence of the other girls even though D, on the stand, said he had never molested anyone. (Fed-Pros could have called each girl to the stand). Fed R 414 : Criminal Child molestation (same). Fed R 415 : Civil suits concerning child molestation and sexual assault (same).

8. R 406 : Habits and Routine Practices: (Few habit cases; many routine practice ones). P. a. Evidence of Habits (people) or routine practices (organizations) are relevant to show that the person/organization acted in conformity w/ the habit/practice. i. Habit: Something you do all the time (nearly every single dayi.e.- Weems going to get coffee); propensity- you do occasionally.

1. “I saw him fasten seat belt/run stop sign 100s of times”habit. ii. Routine Practice: Things similar to “standard operating procedures.”

1. I.e.- Bank manager allegedly put something in the mail. No one has personal knowledge of it actually getting put in the mail. a. Put on evi of people who know the “system” to show how the routine practice worked. Ch. 18: Similar Happenings :
2. Other Claims, Suits, and Defenses of a Party: (Can D show P made similar claims?) a. R. 401 (probative value?), then R 403 (Is PV subst. outweighed by UP?-Jury may take this evidence as character evidence) b. Usually, this evidence comes in on cross exam of P (impeach credibility).
3. Other Misrepresentations & Fraud: (i.e.-D is a con man) a. P usually says, “we’re offering to show intent, absence of mistake (404(b)).” b. D then argues R 403, but it is usually allowed.
4. Other Ks and Business Transactions: (What does K mean? How do parties understand?) a. If a matter of the course of dealings b/t the partiesadmissible. Just a matter of how K had previously been interpreted (not b/t same parties)maybe admissible.
5. Comparable Sales: (How much is property worth?-eminent domain) a. Opinion as to other property’s value to determine this propertyadmissible.
6. Other Accidents and Injuries: (Can be very damaging evidence). - Most important - a. Mitchum : Wreck at RR. P wanted to prove that there had been 3 previous wrecks there in past 2 yrs. Purpose-show dangerous, D should’ve known, notice. i. CT: P had burden to show the other accidents were VERY SIMILAR in order for the evidence to be allowed. (I.e.-same vegetation problems, etc).
7. Burden on proponent to show similarity b/t circumstances when laying the foundation for testimony b. Can D use it to show an “absence of accidents?” i. Yes, but again, must show similar circumstances. I.e.-D sued b/c stairwell. D can show no other accidents if D can show similar (same lighting, etc) c. Other Examples: i. Melton : 887 F.2d 1241: Defective design case concerning combine. P had others who had been hurt. Ct said admissible (even people hurt afterwards). P showed that the combines were exactly alike. ii. MS Public Saf’y : P contended hwy dangerous. Put on evidence of other wrecks under same conditions, around same time, at same spotadmiss. iii. Barrett : Car hit cow on hwy. Evi of D cows getting out was admissible. Ch. 21: Demonstrative Evidence : No limit to the variety.
8. Introducing: Mark, show opposing, lay foundation, and offer into evidence.
9. Laying Foundation: (2 steps): a. Physical Evidence must be relevant to an issue of the case. i. A lot of times, it is offered to help the jury understand testimonyOK. b. Authentication: Must have testimony (based on personal knowledge) stating that the “thing” is authentic. R 901 : A condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the think in question is what the proponent says it is.

i. Kniep : Testimony of wit w/ Pers. Kn. that decedent wearing clothes req’d ii. Murphy : Farmer sued b/c seed was bad. Offered a jar of seed into evidence. Farmer authenticated (uncorroborated, self-interested Wit).

1. Admissible, but it is up to the jury whether to believe or not. D can impeach credibility & draw inferences. iii. Moore : P sued Corp saying car they sold him had rolled back odometer. P had a report from another corp that showed the car had more miles.
2. P attempted to authenticate. D-“P has no Pers. Kn. of mileage then, he can’t authenticate to say report accurate.”  T Ct-Agreed w/ D.
3. Photographs: a. Foundation: Must have someone who was saw (in person) what the photograph represents. L asks, “Is this a fair & accurate representation [of P car after wreck]” i. Anyone who saw (PK) the car after the wreck could lay this foundation.
4. Doesn’t have to be PK of the day of the wreck.
5. Video: Same type of foundation must be laid. a. Best to have the cinematographer testify. “Is this a fair & accurate depiction of the scene that was videotaped that day?” b. Day in the Life: Video of what the P lives like after injury (L can’t “direct.”) i. Always ask, “Is it relevant to an issue in the case?” It may not be.
6. Eckman : Daily activities were admissible, but still shots of their wedding day weren’t relevant. Even if relevantR 403 (Unfair prejudice would be jury basing its opinion on emotion). a. Closing: Can’t tell jury to consider evidence for a purpose it was inadmissible for. Can’t bring up stuff not in evi.
7. Sound Recordings: I.e.-A Narc wearing a wire. a. Someone w/ Pers. Kn. must testify that, “The recording is a fair & accurate representation of the conversation b/t the D and the cop.” i. Usually this is the guy in the van who listened testifying.
8. Chain of Custody: Sometimes a wit can’t authenticate based on looks alone. a. All guns, bags of cocaine, etc. look alike. Chain of custody is req’d. b. Therefore, cops tag/identify the evidence and put it in a locker. c. Unless there is a suggestion that the evidence had been tampered with, the chain of custody is met. i. If all reasonable men would have a reasonable doubt; inadmis. ( Butler ).
9. Maps, Models, and Diagrams: Can be very valuable. Puts words into perspective. a. Ask the designer of the diagram: “Is the model/diagram a fair and accurate drawing of the [intersection].”
10. Body Demonstrations: Show the jury physical injures/disfigurement (powerful).
11. Views: Usually allowed in eminent domain cases. a. Anytime you feel Client can benefit from the jury actually seeing the scene, you can request a viewing. (Feel photos won’t do you justice). b. Judges don’t like it b/c they have to load Ct on a bus and head out there. **Exhibits: In MS, the jury has access to all exhibits in the jury room. Ch. 24: Hearsay : p. 40-72:

1. Hearsay prevents a party from showing that an event happened in the past (or a condition existed) by proving that someone stated, out of court, that the event happened.
2. Definitions: R 801 : a. Statement: Oral or written Assertion or nonverbal conduct intended as assertion i. Assertion: Stating that an 1) event happened, OR a 2) condition existed. 1. Under Rules, there are no “implied” assertions. a. Narrow reading of hearsay rules. b. “I’ll pay $5000 to paint house.”may imply that house needs painting, but it doesn’t expressly assert it. 2. If the statement doesn’t assert anything, it can’t be hearsay. DON’T FORGET THAT!! a. “Come quick” v. “come quick, Sam ran stop sign, hit car”: 2d asserts something while 1st^ doesn’t. Same in writing b. Cop heard stmt of wit in JP courtasserts Sam ran sign. H. b. Declarant: Person who made the out of court statement. c. Hearsay: Statement (oral/written assertion) made out of Ct by declarant, offered to prove the truth of the matter asserted. i. NOTE, even if the out of court stmt does assert something, it is ONLY HEARSAY if it is being offered to prove the truth of the thing asserted. ii. Substantive Evidence is evidence offered to prove truth of a thing asserted.
3. Why do we protect against Hearsay? *The probative value of hearsay evidence depends on the truth/veracity of the declarant. a. Cross-Examination: The Right to cross exam witnesses who testify against you is a valuable right. Without being able to cross-exam, evi is kicked out. i. Foyt Ex : Cop allowed to testify as to Harry Pierce’s statement to the cop. Using Pierce’s words against D, and D can’t cross-examine Pierce. 1. If alive, on Cross, D’s atty. may have been able to shred Pierce. b. Declarant’s out of court statement wasn’t sworn to under penalty of perjury. i. This makes a difference. Wit will be much more careful under oath. c. Jury doesn’t have the opportunity to watch the declarant’s demeanor. i. Demeanor is important. Amazed at the difference in transc & perception.
4. CASES: a. Hall : Counselor at school. Girl said, “man molested me.” Counselor testified-H. b. Jones : Dr. died after examining P. P tried to introduce letter written by Dr. Hearsay. (Assertion-condition existed; offered to prove truth of matter asserted). c. Marks : Child came out of house saying, “Fred killed Mom!” Neighbor testify-H. d. Depositions and Affidavits: These are hearsay. Out of Ct stmt, asserting something, being offered to prove truth of the matter asserted. (usually an exc).
5. Out of Court Utterances that aren’t hearsay (§ 249, p. 45). a. Verbal Acts: Words that give rise to legal duties, rights, obligations, or liabilities. Verbal Acts are usually issues in the case. i. I.e.-P painted D’s house. Dispute as to whether it was for $5000 or less. 1. Utterance wasn’t assertion, BUT even if it did assert something, it created an obligation (therefore, it isn’t hearsay). ii. I.e.-Wreck. “Owner told X to drive.”  created an obligation. Stmt not H. iii. I.e.-Informed Consent/Dr. Nurse says, “Dr told patient it caused acne.”

1. This is an assertion (condition existed in medicine), but stmt goes to contested issue in the case. Admissible. iv. I.e.-Slander. Stmt asserts something. But, making stmt imposes liability. b. Verbal Parts of Acts: Words that accompany an act used to explain an act. i. I.e.-giving a gift. Need words to show really a gift. Not hearsay. c. Utterances Offered to Show the Effect it had on the reader/hearer(’s mind)
2. State of mind/effect on mind must be relevant to an issue in case. ii. Whittley : Publication saying bin was dangerous. Hearsay to show truth of matter asserted (dangerous), but it was allowed to show notice of danger. iii. Leaving scene: Black man ran over white kid. “Better get out of here.”
3. Not assertion, even if was, offered to show why D left scene. iv. Murder. D says, “I was told V was going to shoot me.”
4. Assertion-event (looking). D-offering to show D’s state of mind. v. Brake failure, wreck. Owner claims mechanic said they were OK.
5. Asserts condition. But, D-offering to show reason to think fine. d. Out of Ct statements to Show the State of Mind of the Speaker/Writer i. State of mind isn’t always relevant. If it is-admissible. ii. Hughes : 18-wheeler hit 19 yr old. Suicide case.
6. P calls dec’s sisterdec said, “Go to Memphis tomorrow?” a. Not offered to prove truth, offered for dec state of mind (not suicide if making plans). Weems says not an assertion.
7. D’s wit. Waitress heard dec say, “I’m sick of life.” a. Assertion-condition. Used to prove assertion-H (but Exc). e. Prior Inconsistent Statements of a Witness i. Foyt Ex : Pat, in restaurant said, “Paul was speeding.” Waitress overheard.
8. At trial Pat says Paul was going 55. D could call waitress and say, “Not Offering for proof of assertion, but to show inconsistent.” a. Admissible-doesn’t say which is true, just “watch out, j.”
9. Indirect Hearsay: a. You can’t get around something being hearsay by saying, “Then I learned.. .” instead of saying, “Then the person told me.. .” (Still hearsay). b. Reputation is hearsay, but there is an exception for it.
10. Conduct as Hearsay: (very limited) a. Functional Equivalent of words: Nodding, pointing, etc. Same as saying it. b. Not Verbal Equivalent: Actual actions/conduct. i. Rule: To be hearsay, the actor must have intended to assert something.
11. The party claiming hearsay has the BOP to show intent to assert. ii. Seaworthy Ex : Captain went onto ship, inspected it, put his family on board, and then went out to sea.
12. P claims this was hearsay. Equivalent of Captain going around and saying the ship was seaworthy.
13. BUT, narrow interpretation of hearsay. It is true the captain believed it, but he didn’t intend to assert that it was safe.
14. IF the P could show that there had been a huge controversy over seaworthiness, and Captain knew everyone was watching him, P could potentially have met BOP of showing “intent to assert.”

iii. MS CASE (Weems says they got it wrong). 537 So. 2d 1363

1. Paternity suit. P says D is father. Offers evidence to show that D’s parents came to hospital to see baby. a. Ct said, “Parents intended to assert baby was G’kid.” iv. Weems says to presume no intent to assert/communicate something.
2. Summary: What is and isn’t hearsay? (Most important). a. An out of Ct utterance isn’t hearsay unless it is an assertion (event happened or condition existed) and it is offered to prove the truth of the matter asserted (). b. Conduct isn’t hearsay unless the actor intended it to be an assertion, and it was offered to prove the truth of the matter asserted (event happened/condition exist). c. Implied assertions are words that don’t assert anything. They imply that an event happened or a condition existed. Implied assertions can’t be hearsaynarrow. i. But, if a person against whom evidence is offered can prove that the declarant intended to make an assertion, it CAN be treated as hearsay.
3. Statements defined as NOT being Hearsay (but fit def’n) same effect as an exception. a. Rule 801(d) operates to make hearsay admissible substantive evidence. b. Traditional view: If stmt fit the hearsay def’n, it was hearsay, regardless of if it was the declarant who was testifying about his own previous statement i. This is still the rule. Congress refused to let the S Ct change this. Instead, Congress carved out a narrow exception. (I.e.-“Then I said,.. .”) c. R 801(d) : Prior Statement by Wit : Stmt isn’t hearsay if (1) declarant testifies at trial, is subject to cross exam, and statement was: i. (A) Inconsistent w/ his testimony and [stmt] was given under oath subject to penalty of perjury at a trial, hearing (or proceeding), or a deposition.
4. C/L allowed a Wit to be impeached by prior inconsistent stmts, but these stmts couldn’t be used as substantive evi (truth of asserted).
5. Foyt EX : Pierce (wit of wreck) is alive and says at trial, “I just saw wreck... not truck.” P atty says, “Didn’t you previously say (in writing to cop) that you saw the truck run the stop sign?” a. This is OK. If Pierce said stop sign was run in his depo, then the depo/stmt could be used to prove matter asserted.
6. Brown v. State : Pharmacy robbery. Two wit. Identified D. They each gave a signed written stmt to cops. At trial, “I saw nuttin’.” a. Pros impeached, but he couldn’t use the prior written statements as substantive Evidence. Jury still convicted. b. J gave a limiting instruction, but Atty. still used stmts as substantive evidence in closing. Thereby inviting the jury to use the stmts as substantive evidence. i. “You heard they signed stmt saying.. .” c. S Ct reversed. Impropershould only have impeached.
7. R 801(d)(1)(A) usually comes up when a wit has testified in a trial, & it is remanded OR (more likely) when a wit changes depo. a. EX: Kent said Foyt going 80 in depo. At trial55. Subst. E ii. (B) Consistent w/ testimony and is offered to rebut an express/implied charge against him of recent fabrication, improper influence, or motive.
8. Consistent out of Ct stmt are generally just cumulative.

2. If opposing claims you fabricated story, you can then bring up previous stmt (relevant & not cumulative). a. I.e.-“I said same thing at JP Ct, to cop in café, etc.” iii. (C) [Stmt] of identification of a person made after perceiving the person
3. Lineup: This would be a “functional equivalent” of a stmt. a. Someone who was present may testify to their personal knowledge that the Wit identified/pointed out D. d. Admissions by Party-Opponent: R 801(d)(2) : NOT HEARSAY. i. Admissions come in as substantive evidence. ii. Definition: Words or acts by a party opponent (or his representative) offered as evidence against him. (P ag D; D ag P).
4. P (D) may use D’s (P’s) stmts/acts to prove any relevant issue in the case so long as the evi isn’t inadmissible by the ROE. a. I.e.-404, 407, 408, 410, etc. NOT HEARSAY.
5. This rule DOESN’T permit the P to introduce something that the P said earlier. Evi MUST have been offered by opposing side. a. After the evi is allowed, it can be used by either side for anything. iii. Judicial v. Evidentiary Admissions.
6. Judicial: Stmt by party in pleading, response to request for admission, pre-trial order, or by atty., in ct, on the record. a. These are binding. Party may NOT contradict after admitting unless Ct allows you to w/draw it first.
7. Evidentiary: Evidence of stmts or conduct, which are relevant to the issues in the case. a. These can be refuted or explained. iv. Weems’s Comments
8. Personal Knowledge: The party whom the stmt is being offered against doesn’t have to have had personal knowledge of the fact. a. I.e.-Dog bite. D says, “My dog did it.” P can introduce this admission even if D didn’t see/perceive dog biting man.
9. Explanation: When a stmt is introduced against a party, that party may deny saying/doing it or explain it away. a. Foyt Ex : Williams plead guilty in JP Ct. This is admissible against his E/er. Someone who heard this could testify to it. i. Williams may then get on the stand and explain his plea. I.e.-“It was only $100. No point fighting.” b. P entitled to prove D said something, D entitled to explain.
10. Against Party-Opponent’s Interests: For a party to introduce a stmt made by his opponent, the stmt need not have been “against the opponent’s interests” at the time of saying it or at trial.
11. Foundation: No foundation is necessary. Just show the wit heard stmt.
12. Conclusion or Opinion: Generally admissible (P. 34.) e. Testimony by the Party against himself. i. This evidence isn’t judicial admission. The party may refute his testimony.

ii. EX: Dr. hurt a patient. Said, “I shouldn’t have done what I did.”

1. P can use this at trial. D can explain it away.
2. What if Dr. said this at trial (on cross)? Dr. can still introduce evidence showing he wasn’t negligent. f. Representative Admission: 801(d)(2)(C)-(D). i. (C) - Stmt is offered against a party is a stmt by a person authorized by the party to make a stmt concerning the subject.
3. I.e. - Atty.; Corp E/ee who has authorization; etc. ii. (D) - Stmt is offered against a party is a stmt by the party’s agent/E/ee concerning a matter within the scope of the agency /E/ment, made during the existence of the relationship.
4. Foyt Ex : Williams says, “I didn’t stop.” He isn’t a D, but it concerns the scope of E/ment and was made during E/ment. a. NOTE, if he said it after being firednot admissible. g. Thornhill : Tape of D speaking (exculpatory stmt). Prosecution wants to admit it. i. R 801(d)(2)(A) says this isn’t Hearsay. W/out this rule, it would’ve been hearsay. Pros could argue, “Not offered for truth asserted, inconsistent.” ii. D argues, “Not against interest.” iii. S Ct held: It doesn’t matter if stmt was against interest or not. Just must be stmt by one party, offered by the other.
5. Unless excluded by a rule of evi (407, 08, 10, etc), admissible if stmt is offered by party opponent.
6. NOTE, D couldn’t have put the stmt in (not “offered by opposing”) h. Clanton : D gave a written stmt to cops. Similar exculpatory stmt as Thornhill. i. D wanted to put this stmt in w/out testifying. ii. S Ct didn’t allow it (not offered by Party-opponent). i. McMillan v. King : Negl action against hospital. P can’t remember a lot of events. Therefore, P needs a hospital E/ee’s testimony, but P doesn’t want to call the E/ee. P wanted to introduce the depo. D obj-“E/ee is here.” T Ct sustained. i. S Ct held: This depo should’ve been admissible under 801(d)(2)(D).
7. NOTE, if E/ee had been fired b/f depoinadmissible. ii. But, Ct also held that it was harmless error b/c the P could’ve gotten the deposition in as substantive evidence and to impeach the E/ee’s inconsistent stmts. P made the points w/ the testimony that he wanted to make w/ the depo (offer of proof showed the S Ct that). j. Read § 261 k. §§ 262-65: Admission by Conduct: Generally conduct isn’t hearsay b/c there is usually no intent to it assert anything. Usually, just ask, “Is it relevant.” i. Silence: Evidence of silence shouldn’t come in unless it is clear that guilt is the only reason for the silence. Butler (Where school nurse accused mom of abusing child and mother slammed phone down, the silence was open to different interpretations; therefore, it was inadmissible).
8. If this evidence does come in, party may explain it away.
9. NOTE, some cts have allowed it on lower stds. ii. Fight and Similar Acts: Generally conduct, so ask, “Relevant, 403?”

iii. Failure to Call a Witness: I.e.-D’s alibi was, “I was fishing w/ brother.” The Q is, can pros raise inferences about the fact D didn’t call brother?

1. C/L: Pros could bring this up. Even on closing. NOTE, D could also say, “well, then why didn’t Pros call him?”
2. Today: There is a split. It probably still is OK, especially if the D and the “alibi person” were close. (i.e.-good friends, family, etc.) iv. Misconduct Constituting Obstruction of Justice:
3. I.e.-falsifying docs, destroying evidence, suborning perjury, bribery, etc.
4. If can show the above was done w/ an intent to prevent producing the evidence, it probably will be admissible. + subject to 403. Summary: Most important thing is to determine if something is Hearsay. List:
5. Stmt must assert something (no assertion, not hearsay)
6. If stmt does assert something, it must be offered to prove the truth of the matter asserted. a. Usually a limiting instruction to say it can’t be used as hearsay. Subject to 403.
7. 801(d)(1): Prior stmt by a wit at a trial/hearing & subject to cross that is (A), (B), (C)
8. 801(d)(2): Is it a stmt by one party & is being offered by the other party? Exceptions to Hearsay :
9. There is something about these types of stmts. that the Ct has decided imparts on them a “substantial guarantee of trustworthiness.” (No real guarantee, Ct just doesn’t stmts.)
10. Two Types: 804 (unavailability exceptions) and 803 exceptions. R 804 : These exceptions ONLY apply if the defendant’s testimony is unavailable. The BOP to show unavailability is on the proponent of the hearsay evidence. Also, if the proponent is responsible for the unavailability, he can’t use 804 exceptions (i.e.-talking wit into declaring 5th).
11. Unavailability includes when the declarant: a. Is exempt by ct b/c of privilege concerning subject matter of testimony (i.e.-5th). b. Refuse to testify despite the ct order (i.e.-reporters). c. [declarant] testifies to a lack of memory. d. [declarant] is unable to be present b/c of death or physical/mental illness. i. R. 104 applies: Ct determines preliminary Qs regarding the admissibility of evidence. In doing so, the Judge is ONLY bound by the Rules of privilege. He isn’t bound by the rules of evidence.
12. I.e.-no personal knowledge is req’d (“Talked to wife, he’s dead.”). OR, A letter from the Dr saying Wit is sick (both of these are hearsay, but the ct can still use them to make decision). e. [declarant] is absent from hearing and proponent has been unable to procure attendance by subpoena or other reasonable means. i. 2 reasons:
13. Can’t find wit. (must put forth a GF, diligent effort).
14. Subpoena power doesn’t reach that far. a. Crim Case: Anywhere throughout US. b. Fed Civil Case: Anywhere w/in district AND w/in 100 miles of Ct (i.e.-Could subpoena Memphis, not Jackson). c. MS Civil Case: Anywhere w/in the state. (MRCP 45).
15. If wit is subpoenaed and doesn’t show up, this likely will satisfy “unavailability” under 804. (Wit will be in trouble).

ii. Mitchell v. State : D is on trial for conspiracy to commit murder. Hit man ratted. 1st^ trial-conviction was overturned. 2d trial-Pros wanted to read the hit man’s testimony from the first trial to the jury.

1. Hit man had gone to Cleveland, but he couldn’t be tracked down. The Pros put on 4 wit (family and deputies) to show all the trouble they had gone to get him there.
2. These stmts. are hearsay. BUT, wit is unavailable. 804(b)(1).
3. Ct said, “Pros doesn’t have to do everything, only use due diligence and GF to locate wit (Pros didn’t have to send someone on a blind goose chase to find him in Cleveland). a. Pros could read testimony, just like a depo (if there was no transcript, could have someone w/ pers. kn. testify). f. MRE 804(a)(6) : Wit is Unavailable if the proponent shows that, i. In the case of a child , b/c of substantial likelihood of emotional or psychological health of wit would be substantially impaired if the child had to testify in the physical presence of the accused.
4. This makes it easier to get in hearsay of kid’s stmts out of ct.
5. R 804(b) : If Wit unavailable , following aren’t excluded from evidence by hearsay rule: a. (1) : Former Testimony : Testimony given as a witness at another hearing (same or diff’t proceeding) or in a depo, if the party against whom the testimony is now offered (or in a civil case, the predecessor in interest), had an opportunity & similar motive to develop testimony by direct, cross, or re-direct. i. Can be proven by reading transcript like a depo or personal kn. ii. Considered to have a “substantial guarantee of trustworthiness” b/c the previous stmt must have been
6. sworn to and
7. opposing party must have had opportunity to cross examine. iii. Criminal: The party against whom the evidence is offered MUST have had an “opportunity to develop testimony by direct, cross” at hearing/depo.
8. Confrontation clause. There can be no “substitution of parties.”
9. EX: Mitchell. Assume girlfriend and boyfriend were tried separately. Stmt against one can’t be used in trial against the other, even if the Wit was unavailable. That D couldn’t cross. iv. Civil: As long as at the previous hearing/depo, a “predecessor in interest” had similar an opportunity and similar motive to cross, stmt allowed.
10. Foyt Ex : Pierce testified that Williams ran the stop sign in JP Ct. Can this stmt be admissible in the civil suit by Foyt against E/er? a. Depends if Williams is a “predecessor in interest.”
11. Predecessor in Interest: a. Fairness: Would it be fair to hold the current party responsible for the previous party’s actions? i. Similar Motive? Maybe not, Williams had $100 at stake, Miller has $1M. ii. Same att’y; iii. Was there a need to cross & party didn’t.

v. Depositions - MRCP 32(3): This rule allows depos to be used more than just the “unavailability rules” of 804(a). This is OK.

1. Declarant is more the 100 miles from the courthouse, you can use a deposition rather than testimony. a. If 804(a)(5) controlled, couldn’t... w/in subpoena power.
2. The witness is in prison.
3. The witness is a medical Dr.
4. Catchall... “in the interest of justice.” (W didn’t talk about it). vi. Gibson : Premises Liability. D, laundry mat, was sued when an invitee was murdered on the premises. D’s theory - decedent was killed over drugs
5. In depo: Killer said everything D needed, but when it was time for the P to get to cross, the killer refused to speak w/out getting paid.
6. B/f trial: P moved for mtn in limine to exclude depogranted.
7. At trial: D called killer. He pled the 5th^ (even though he had already been sentenced to life for murder, he could have potentially been charged with perjury). a. D then tries to impeach w/ depo. Not allowed. b. R 801(d)(1): Not hearsay b/c inconsistent stmt by wit? i. D can’t use this b/c P couldn’t cross-examine. c. R 804(b)(1): Exception to hearsay b/c former testimony? i. Testimony unavailable (804(a)(1)), but the P never had an opportunity to develop testimony. b. 804(b)(2) : Dying Declarations : Only applicable in homicide and civil cases. Person making the statement believes that his death is imminent, and the stmt is one concerning the cause/circumstances of the impending death. i. “Guarantee of trustworthiness”: People generally won’t lie about cause. ii. Don’t have to actually die, just believe death is imminent. iii. Personal Knowledge: Declarant must have personal knowledge.
8. I.e.-Decedent didn’t see who shot him; “X did it.”-inadmissible. iv. Ellis : Nephew killed uncle. Uncle told cop, “nephew did it.”
9. 1 st, note that stmt by nephew may be offered by pros. (801(d)(2)).
10. Cop testifying about decedent’s stmt. Yes, victim believed dying. a. T Ct makes this determination.
11. Other cops testified to same thing. No obj req’d (law of case), but it would have been better to get a continuing objection. c. 804(b)(3) : Statements Against Interest : Stmt, at the time of making it, was: (1) Contrary to pecuniary (ag fin) or propriety interests (I don’t own land); (2) Will subject declarant to civil (my fault) or criminal liability; (3) Made declarant’s claim against someone else invalid. i. Stmt which exposes declarant to criminal liability and is offered to exculpate the D isn’t admissible UNLESS corroborated circumstances clearly indicate trustworthiness of stmt.
12. State v. Jones : Smith testified that Moore said that Moore robbed the bank. To introduce, need circs to show that Moore did it. a. Happened a lot and was too easy for D to get.

ii. Guarantee of Trustworthiness: RPP wouldn’t say this type of think w/out believing it. iii. Don’t confuse w/ Admissions by party opponent. Remember 801(a). iv. Hooker : D was trustee for an old lady. She gave him a check, which he spent. On trial for embezzlement. Can D call old lady’s daughter to stand?

1. Daughter will testify that mother said she had given it as a gift. a. Definitely against Mom’s proprietary interest (don’t own). d. 804(b)(4) : Stmt of Personal or Family History : i. Woman died intestate w/out kids. Squabble over her land. Claim was that she and Jones had the same father.
2. 804(b)(4)(A): Someone could get on stand and say, “Woman always said X was her dad” or “Jones said X was his dad.” a. This is admissible even though the declarant may have no personal knowledge.
3. 804(b)(4)(B): Someone closely related to Jones could say that X was Jones’s father could be an admissible stmt. a. This is one more step removed. ii. Guarantee of Trustworthiness: People generally don’t lie about such things; if made b/f death, no motive to lie; no better evidence available. e. FRE 804(b)(6) : Stmt offered against a party that has engaged or acquiesced in wrong-doing that was intended to, and did, procure the unavailability of declarant. i. Seems to say that if you wrongfully caused a wit’s unavailability, any hearsay BY THAT WITNESS can be brought in against you. R 803 Exceptions : Availability not required (25 of them).
4. The Spontaneous Exceptions: Formally, the res gastea exceptions. Stmt must have been spontaneous. If it appears stmt was made for purpose of creating evinot spontaneous. *Self-Serving Statements: Rules of Evi allow them, as long as spontaneous. Self-serving nature of the stmt is taken into account when determining spontaneity. a. 803(1): Presence Sense Impression : Stmt describing/explaining an event or condition, made while the declarant was perceiving event or immediately after. i. Time is the important factor here. (“A second or two.”) ii. Guarantee of Trustworthiness: If while perceiving or immediately after perceiving event, there would be no time to fabricate the stmt. iii. I.e.-Drug Bust. Informant said, “That’s the dealer.” 803(1). iv. Foyt Ex : When Pat saw Williams run sign she screamed, “he’s not stopping.” This is very self-serving, but decision is up to jury. b. 803(2) : Excited Utterance : Stmt relating to a startling event/condition, at time made declarant was under the stress of excitement caused by the event/condition. i. Guarantee of Trustworthiness: So startling, mind stopped. No fabrication. ii. Factors to show declarant was “ under the stress of excitement ”:
5. Time (not determinative, but closer to event better for proponent)
6. How startling was the event?
7. How susceptible was declarant? (age, etc). iii. R 104: Judge decides whether declarant was truly excited. Therefore, iv. Lay a Foundation: Foyt Ex : Pierce ran in and said, “Ran sign, hit car.”

1. You want to give the Judge as much info as possible to decide whether the declarant was “excited.” Ask, “How far was the café from the wreck? Did you see Pierce arrive? What was his demeanor?” (speeding, running, slammed door, ran into café, sweating like a pig, high pitched voice, etc). a. This gives the J more to base decision on for “excitement”. b. Presence Sense Impression won’t work... too much time. v. Sanders : Sexual Assault of a 14 yr old girl.
2. Guard: Ran and told guard, in tears, “I was assaulted.” a. Admissible. D argued cumulative, but ct still allowed
3. Cop: In the police car, a few minutes later, cop asked her some questions about the assault and she answered them. a. Admissible. Still “under the stress of excitement.” This was more important than the passage of time or the fact that cop asked questions. Still spontaneous.
4. Pointing to D as he drove by: Admissible under 801(d)(1)(C).
5. Although there was no personal kn of assault except by V, convict.
6. VERY LOOSE requirements for meeting the “excited utterance” exception when it comes to abuse of a child. a. Ct has even allowed it up to 24 hrs. vi. Note, if arrested for one crime and D says, “I bet you’re going to charge me w/ X.” This wouldn’t fall under (2) b/c not “related to” exciting event.
7. It would be an admission by a party opponent, though. c. 803(3) : State of Mind : most like the old Res Gestae. There are no Time or Excitement requirements. Last resort for proponent. 3 ways it may come in: i. Stmts of Bodily feelings, symptoms & conditions: Stmt must relate to how the declarant felt at that time. (P/S).
8. I.e.-“I feel fine now, felt like hell yesterday.” Not adm for y-day. ii. State of Mind when State of Mind is at Issue: Used to show plan, malice, intent, motive, ill will, etc. Allowed only when spontaneously made.
9. Must not have been made to “create evidence.” I.e.-I plan to... iii. Stmt to show Declarant LATER Did Something:
10. I.e.- Hughes : Truck hit 19 yr old. a. “Want to go to mall tomorrow?”-Used to show didn’t intent to commit suicide (even if assertion). b. “I want to die.”-Used to show state of mind & what he did. iv. Point: Stmt can’t be offered to prove that a person previously did something EXCEPT in a will case (i.e.-“I threw away will.”)
11. Stmt saying you did something in the pass is clearly hearsay.
12. 803(4) : Stmt for Purposes of Medical Treatment : a. Guarantee of Trustworthiness: Generally believed that a person doesn’t lie to their doctor about injuries or pain b/c they really want to get help. b. Foyt Ex : Family doctor can testify about all of Foyt’s injuries, pain, etc that Foyt complained about to him. This is true even though Foyt will also testify. i. I.e.-Did you take a medical history? “Yes... blah blah.”

c. This includes as to what the plaintiff says caused the injury (wreck) because it can be useful in medical determination. Dr. can’t say, “Guy ran sign, caused wreck.” d. Expert Doctors: Doctors other than the treating/family doctor. A specialist to testify as to what the plaintiff’s future holds, etc. (not for treatment, for testimony) i. Guarantee of Trustworthiness is simply not present. Not telling for trmt. ii. However, the Dr. is giving an opinion as to P/S, etc. If you let him give an opinion, you should also give him the opportunity to tell the basis for op.

1. The basis will include the plaintiff’s stmt of medical history.
2. Relevant to how much weight jury gives to expert. iii. Therefore, it isn’t worth trying to distinguish the two situations. 803(4) also applies to those doctors in which the plaintiff went to for testimony. e. MRE 803(4): Stmt can come in regardless of whom they are made to as long as pertinent to diagnosis or treatment. Medial refers to mental and physical health. i. T Ct must affirmatively find the proffered stmt was made under circumstances substantially indicating their trustworthiness.
3. Purpose-Make it easier to allow in hearsay by child about assault. a. Hall : Kid made stmt to counselor. P wanted counselor to testify about stmt. Hearsay. Ct-not for medical diagnosis.
4. Child sexual abuse cases, kid’s hearsay stmts will allowed easier than in other types of cases. (i.e.-FRE 413,14,15, MRE 617, etc).
5. 803(5) : Recorded Recollection : Different from “refreshing recollection.” a. Memo or record, concerning a matter about which witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made/adopted by witness when it was still fresh in memory and to reflect that knowledge correctly. i. Can be read into evidence, but not offered as an exhibit except if it is offered by the adverse party. b. Foyt Ex : Officer Lewis forgot where cars were when he got to scene. Show him the report of the wreck to see if it refreshes his memory. i. He says, “I see what I wrote, but I just don’t remember.” ii. If that’s the case, he can’t testify about it. iii. Atty. can then seek to qualify the report under 803(5).
6. Memorandum by wit,
7. Wit once had knowledge,
8. Now has insufficient info to testify fully/accurately,
9. made or adopted memo when it was fresh in memory and correct. a. I.e.-when did you make it? (“1 hr after I saw it.”) Was it w/in your memory? Does writing reflect what you once knew? (“Yes, I knew important, always careful.”) i. Officer must vouch for accuracy of report. iv. After it is qualified, you can ask wit to read it, or you can ask specific Qs.
10. All this usually isn’t necessary b/c the report usually refreshes. c. Confusion w/ “refreshing recollection.” For a writing to refresh recollection, it doesn’t have to conform to this rule. Req’ts only have to be met when you’re trying to use 803(5) to get the memo in as substantive evidence.