#11367 - Unit 2 Reliability - Evidence Outline - Long

19th Century Common Law Tradition was that we determine witness competency by “status” in various different ways (convicted felon, certain religious beliefs)

Rule 601. Competency to Testify in General

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Rule 602. Need for Personal Knowledge

A witness may testify to a matter ONLY if evidence is introduced sufficient to support a finding that the witness has personal knowledge on the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Rule 603. Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience. [potential problems: very young children, low mental competency]

Rule 610. Religious Beliefs or Opinions

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility

WATCH OUT FOR VERBALCONDUCT THAT IS ASSERTIVE BUT OFFERED AS A BASIS FOR INFERRING SOMETHING OTHER THAN THE MATTER ASSERTED – i.e. “I need to put on a sweater” can be submitted for the truth that it is cold, because its main subject is how the speaker would have dressed. However the closer a statement is to the inference drawn the more likely it is hearsay, and the further away it is the more likely it is to fail the relevance standard.

Article 4 Relevance Rules focus on the issue of fact which an item of evidence may ten to prove, whereas the HEARSAY RULE focuses on whether the statement depends on the truth of what is asserted in it, in order to be relevant for a proper purpose

Rule 801. Definitions that Apply to this Article; Exclusions from Hearsay

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it to be an assertion. [umbrella example – when people open up their umbrella on the street they are manifesting their belief that it is raining/think it is going to rain, you are NOT intending to communicate this belief to anyone, so its not hearsay because its more reliable (no insincerity risk)]

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that

(1) The declarant does not make while testifying at the current trial or hearing; and [does not matter how reliable the past statement was (under penalties or perjury, at another trial etc),does not matter if the delclarant is testifying about a statement she made (still hearsay)]

(2) a party offers in evidence to prove the truth of the matter asserted in the statement

(d) Statement that are not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition [can be admitted for a SUBSTANTIVE purpose since declarant is subject to cross examination AND the past statement is more likely to be true than the current one because it was made nearer in time to the matter which it relate and is less likely to be influenced by the controversy that gave rise to the litigation]

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party and in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E) [i.e. must offer other evidence to prove these things before the statement can be admitted]

Rule 802. The Rule Against Hearsay

Hearsay is NOT admissible unless any of the following provides otherwise:

• A federal statute;

• These rules; or

Other rules prescribed by the Supreme Court

You can always submit out of court statements if:

• There is no assertion OR

• You are not submitting the statement for its truth, OR

• There is an exception provided by the rules

A lot of the exception rules are motivated by the fact that the hearsay is MORE RELIABLE or possibly NECESSARY

Mahlandt v. Wild Candid Survival: Wolf allegedly bit a 3 year old. Three statements that were of importance:

1. Poo’s note to the center’s president “Sophi Built a Child”

2. Poo’s verbal statement to president Sexton that sophie bit a child

3. Minutes from the center’s board meeting that describe discussion

Court does not allow any of these statements because the witness (Poo) did not have personal knowledge of the situation. He had heard about the wolf bite from someone else.

• Both Poo’s written noten and his verbal statement should be admissible against him under 801(d)(2)(A) (he is in court and the statement was made by him, he has an opportunity to rebut it if its not true)

• Both are also admissible against the research center under 801(d)(2)(D) (made by a party’s employee within the scope of that relationship). Also should have to answer to the board minutes (but not Poo)

• However, what actually happens here is a 403 ruling (prejudice)

Rule 602 Requirement DOES NOT apply to opposing parties statements under Rule 801(d)(2).

Rule 801(d)(2)(E). CoConspirator Exception

A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

5. Was made by the party’s coconspirator during and in furtherance of the conspiracy [i.e. a party’s statement to the police after he is caught does NOT fall under this exception – the conspiracy has ended essentially] [it is NOT required that a party be formally charged with conspiracy]

So, this requires that there 1) is a conspiracy and 2) the conspiracy included both Lonardo and Bourjaily, and that 3) Lonardo made the statements during and in furtherance of the conspuracy

Bourjaily v. US: Leonardo makes statements to informant that Bourjaily ants to buy some drugs. Transaction occurred as planned, Leonardo & Bourjaily were arrested once Leonardo placed a kilo of cocaine in petitioner’s car.

Contrast 104(a) to 104(b) (conditional relevance). 104(b) is a LESS STRINGENT STANDARD. Requires only that “proof, be introduced sufficient to support a finding that the preliminary fact does exist”

Rule 613. Witness’s Prior Statement [procedural rule for how most past witness statements are dealth with]

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its...