Monday, November 30, 2015

Review Session

Is tomorrow (Tuesday) at 10 a.m. in RDB 2007.

Many Questions and Answers

1. Under section 3731, what exactly can the government appeal and what it can not? I am confused with this rule.

What it can appeal should be clear from the text; no reason to reprint it here. What it cannot appeal is a jury verdict of "not guilty," because that would violate the constitutional prohibition on trying someone twice for the same crime.

2. Am I correct when I say that a "waiver of objection" means that when cumulative evidence are offered and admitted and not objected the 1st time, they can not be objected the second time, because this possibility was waived?

Waiver of an objection means that by failing to raise the objection, the party has lost that objection for later in trial or appeal, unless clear error applies. One example of waiver is the situation you describe. By failing to object the first time evidence is offered, there can be no claim of error in admitting over an objection the second time--again, unless the first time was clear error.

3. Rule 803(A)(ii) can the prosecution get evidence in through this rule or just the defense? (I know that (iii) is just for the defense) 

(I assume you mean 803(8)(A)(i). Look at the text.  If there is no limitation mentioned, then the limitation doesn't apply, subject to Confrontation analysis. But 803(8)(A)(i) evidence is almost certainly never testimonial. 

Sunday, November 29, 2015

803(3) Question

Under 803(3), can a declarant's statement, regarding an intent or plan, be used to show another person's intent or plan? For example, "I am going to the zoo with Joe tomorrow." Can this be used to show Joe's intent to go to the zoo that day? 

It can, although it is controversial, for the reasons we discussed in class. Recall the split in the legislative history of 803(3) about whether the rule codified Hillmon (the old Supreme Court decision) or limited it. Most courts allow the statements to be used to show third-party intent and to show third-party action in accordance with that intent  (in your hypo, the statement could be offered to show that Joe actually went to the zoo). But courts often use FRE 403 to mitigate the perceived unfairness. For example, some courts only allow it if the evidence is uniquely necessary in the case (i.e., there is no other way to prove the fact). Other courts allow it only if the declarant is unavailable. Still other courts allow it to show third-party conduct only if there is corroborating evidence of that conduct.

Saturday, November 28, 2015

Hearsay Exception Question

Is the outside time limits for BOTH excited utterances and present sense impression is 15 minutes? Or are present sense impressions just statements made while the event is occurring? 

Not quite on either point.

Fifteen minutes marks the outside of what courts have accepted as "immediately after" for a present sense impression, although that does not mean that every court accepts 15 minutes as immediately after. In other words, if 15 minutes have passed, a court might let it in under 803(1); if 20 minutes have passed, a court almost certainly will not let it in.

The question for excited utterance is whether the declarant was under the stress of excitement when she made the statement. That does not involve any strict time limit. There is an inferential connection between time and excitement--the closer in time to an event, the more likely the declarant is still excited. But how long the excitement lasts (or reasonably lasts) varies--the more startling the event, the longer the excitement lasts.

Two More Questions

When it comes to using prior inconsistent statements for impeachment, the statements are not hearsay because they are being used to attack credibility of a testimony. However, if those inconsistent statements are being used substantively to show that one of them was "true" then it would be hearsay and not admissible unless it falls under an exception or the judge allows it under 104(a) discretion? 

FRE 104(a) does not allow statements in; it governs what the judge can consider in deciding whether to let the statement in. Other than that, you are largely correct: The prior inconsistent statement is not hearsay because the fact of consequence is the witness' inconsistency--that she is changing her story--which does not depend on the truth of the matter asserted in the prior statement. The statement can be offered for substantive purposes only if it falls within an exclusion or exception--most obviously, FRE 801(d)(1)(A), if the statement was made under oath.

I'm a bit confused by lay witness opinion. A lay witness can testify to opinions even if it embraces an ultimate issue such as in a DUI case, saying "I believe he was drunk" but an expert witness cannot in a criminal DUI case because 704(b) prohibits it? I am confused because I know lay witnesses can only testify to what they know first hand and I'm not sure they can know someone is drunk unless they draw inferences?
A lay witness can say someone was drunk, because those inferences ("opinions") are rationally based on perception. And the point of FRE 704(a) is that such opinions are not excluded merely because they are the ultimate issue in the case.
Nothing in FRE 704(b) prohibits an expert from giving the testimony you suggested--although I'm not sure you would need the expert when you have the witness.  FRE 704(b), by its terms, limits expert testimony about mental states--basically, about whether a witness is being truthful or whether the defendant could have formed the requisite mental state to commit the crime.

Friday, November 27, 2015

Let the questions begin

I am having trouble understanding the difference the clear error and abuse if discretion standard. I understand the rule ( clear error is for factual findings while abuse of discretion is for combined facts + law, like evidentiary issues), but could you give an example?

Two examples to try to illustrate.

1) A Pty is trying to offer a statement as a present-sense impression. The  court finds the preliminary question that the statement was made 10 minutes after the event. It also decides that the statement was made "immediately after" perceiving the event and should be admitted under 803(1). On appeal, the court would review the finding about 10 minutes for clear error, as that is a pure factual issue; the court would review the conclusion about immediately after for whether it was an unreasonable conclusion.

2) A Pty is trying to offer prior acts to show identity. The court identifies four features to the prior act that are similar to the current acts. The court also concludes that the similarities are sufficient to establish identity under FRE 404(b)(2). On appeal, the finding of similarities is review for clear error, as the features and their similarities are factual. The conclusion about the similarities being sufficient is reviewed for an unreasonable conclusion, as would the conclusion that identity is relevant to the case.

The last paragraph of 804(a), why would the "proponent" wrongfully cause the unavailability?  I know we discussed in class, the Mafia type situation, so wouldn't that make them the opponent?

This is not the same as 804(b)(6), which creates a hearsay exception (and makes evidence admissible) if the declarant is legitimately unavailable (under some 804(a) reason) and the opponent of the evidence wrongfully caused the unavailability. The add-on paragraph in 804(a) prevents the proponent of the evidence from causing the declarant's unavailability, then seeking to avail himself of these hearsay exceptions. So, for example, following a mistrial, it keeps Joe from killing Brooke, then offering her testimony from the first trial as prior testimony.

How do we identify a rebuttable vs an irrebuttable presumption?

Under FRE 301, if the source of the presumption is federal law, the presumption is rebuttable unless some other source of federal law provides otherwise. If the source of the presumption is state law, state law will say which one it is.

Tuesday, November 24, 2015

Final Class and FRE 807

Audio from final class. Congratulations and thank you for a fun semester.

The review session is at 10 a.m. next Tuesday in RDB 2007; it will be all Q&A. Prior to that, you can email me questions or post questions to the blog; answers to all questions will be posted to the blog, so be sure to check-in regularly.

The exam is next Wednesday. You may bring your Federal Rules of Evidence and any other rules or statutes we used during the semester; nothing else may be brought in. The exam is 20 questions, worth 4 points each, 125 words per question. You have 3 hours.

I assigned, but we did not cover in class, FRE 807, the "residual" hearsay exception. The text is pretty self-explanatory--it covers statements that are hearsay and do not fall within any other exclusion or exception, but should be admitted anyway because something about the statement gives it "equivalent" sufficient guarantees of trustworthiness and reliability as the other exceptions, so it can be admitted even without cross examination. A few additional points: 1) Some courts read an unavailability requirement into the rule--the exception applies only if the declarant is unavailable; 2) Courts allow these statements regardless of whether it comes close to some other exception; 3) It is fairly rare, although not impossible to get something in under this (the child's statements in Ohio v. Clark, the Court's most recent Confrontation case, had come in under Ohio's equivalent of 807), but you are going to have to make solid arguments on each of the elements.

Monday, November 23, 2015

For Tuesday (on a Wednesday schedule)

Monday audio.

We will finish with Confrontation Clause and the four cases assigned. Try to map out how the Confrontation analysis works and how it interacts with the hearsay rules. Michigan v. Bryant is here.

Just to clarify: On the exam, you can bring whatever FRE you have been using in the class, along with print-outs of the additional rules and statutes that we discussed in class.

Wednesday, November 18, 2015

For Monday

Wednesday audio.

We will continue with FRE 804 and Questions ## 214-215. Is this statement admissible as a statement against interest and why? So is Holman unavailable? If not, what should Jesse do now?

Finish prepping Multiple Hearsay and Residual Exception.