Evidence

27 April

• Everything from here on in is straightforward, except confrontation. We'll spend very littl time on the array of WI privileges. You just need to be able to recognize when there may be one, in practice, and then go and look it up.
• Today we're starting with exclusions to the hearsay rule 801(d)(1) and (2).
• 801(d) tells us some things that by definition are not hearsay. We don't have to look for exceptions to these things. It doesn't matter why these are "exclusions" and not "exceptions."
• First, we've got a prior inconsistent statement given under oath. So, we dealt with this under impeachment in article 6. When a prior inconsistent statement is under oath, it comes in for its truth, not just to impeach the witness. An unsworn prior inconsistent statement can be used to impeach (challenge the credibility of) the witness: the witness ought not to be believed because the story changes. That's the extent of the permissible argument under 613 (for an unsworn prior inconsistent statement). Under 801(d)(1)(A), however, we can offer that statement for its truth. There's no difference in the dignity afforded to the two sworn statements, even though they conflict.

  The 804 exception for former testimony comes in only when the witness is unavailable; you can't use a prior inconsistent statement under 801(d)(1)(A) if the witness is unavailable, because there would be no second inconsistent statement. If the witness is unavailable, the prior testimony can come in and be considered for its truth.

• 801(d)(1)(B): prior CONSISTENT statements. Today the witness says the light was red. The witness is impeached on cross with an earlier statement where he said the light was green. On redirect, the proponent can go back and offer a prior consistent statement in order to rehabilitate. However, there is a catch. In order to be admissible, the statement must have been made before a motive to fabricate or change the story would have arisen.

  This is because the implication of the impeachment is that the witness has a bias in favor of the proponent. The rehabilitation, in order to effectively rebut that implication, must stem from an apparently trustworthy time. The only way it would be relevant, in fact, is if it took place before the alleged improper motive arose.

  Note that this need not be a sworn statement. It's offered primarily to rebut the implication of recent fabrication or undue influence.

  Good news: this doesn't arise too often. On the other hand, when it does, it means you've got a witness who is all over the place...

• 801(d)(1)(C): an earlier statement of identification. As long as the witness testifies today, it's permissible for the prosecution to have the officer who conducted the lineup testify as to whom the witness picked. Thus, even though a witness might not recognize the person today, the earlier identification can be used.
• 801(d)(2): a party's statements by proxy (or direct admission)
  • A: Admission by a party opponent. In any lawsuit, one party can offer the other party's out-of-court statements. Note: this applies only to parties to the lawsuit. Both parties have the right to testify, if they want to explain the statements that have been admitted. A statement of a pary can only be offered by an opponent. A party can't offer its own out-of-court statements (if they've got something to say, they can just testify). This is why the government can offer confessions, statements to cellmates, etc. They are not hearsay.
  • The remainders are admissions by proxy. A is the most frequently used. E is in second place.
  • B: A statement made by someone else, but the party adopts it (nods head, indicates approval, etc.)
  • C: Agency. Someone authorized to speak for the party on the matter makes an admission (a PR person issuing a press release, e.g.).
  • D: Agency where authorization is by scope of employment, not direct authorization.
  • E: Statement by a co-conspirator during the course and in furtherance of the conspiracy. They can be considered, but they're not sufficient in themselves to establish agency. One conspirator's statement can be offered against a co-conspirator, in other words. The opposing party needs to establish, by a mere preponderance of the evidence, that a conspiracy exists, and that the party and the co-conspirator were members of it. The statement itself can be part of that proof (that's Bourjaily, but there must be something more, although it turns out not much more is needed; it does not have to be established entirely by evidence aliunde).

    This produces a lot of arguments. People in criminal enterprises say a lot of stupid things. Maybe you as a defendant have said nothing, but the government is offering all kinds of statements by others and using them to establish your guilt. Even though you didn't know all of them, or agree about all of the objectives of the conspiracy, or all join at the same time, etc., and even though the crime of conspiracy itself isn't charged. This is the bane of your existence if you're defending federal criminal cases, where any sort of group activity is alleged.

    So we've got conditional relevancy issues here. The government says "we've got a lot of co-conspirators' statements to offer." Defense: "wait wut? we don't know there was even a conspiracy here." Government: "let them in, judge, and we'll tie it all up." Judge: "That sure sounds easier than holding a big evidentiary hearing and thereby also disclosing the prosecution's case to the defense. But we'll totally have a mistrial if you don't prove up the conspiracy." And then that never actually happens...

• Note also 801(c): if you're offering a statement, but not for the truth of the matter it asserts, IT IS NOT HEARSAY. So, if you're just trying to show that something got said, for example, regardless of whether it was truthful.
• American Luggage v. US Trunk: this is a statement offered not for its truth. We've got this poll, taken by the plaintiff's lawyers. The responses of the people polled are not offered for their truth-- they're offered to show that there was consumer confusion. Why read this old case? Because Judge Wyzanski is awesome: he wrote International Shoe (long-arm jurisdiction). He's a major intellect.
• Rule 805: hearsay within hearsay. What do you do when you're offering a hearsay declaration that repeats another hearsay declaration? You ask whether each level can be admitted under some exception. Having layers isn't a problem: you just need an exception for each layer.
• Rule 806: you can impeach a hearsay declarant just like you would a witness at trial. We want to make sure that hearsay isn't more impervious to challenge than testimony from the witness stand. My excited utterance is admissible, but then so is the fact that I've got a felony conviction on my record, and that I've made inconsistent statements.

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• Does an admission by a party opponent have to be a concession of guilt or liability? No. I just means a statement. Something said. Anything your party opponent said that's relevant can be admitted.
• OK, Confrontation.
  6A gives a criminal defendant (and only a criminal defendant) the right to confront the witnesses against him. This includes at least:
  1. Presence of the witness before the defendant. Literal face-to-face confrontation.
  2. Presence of the witness before the jury.
  3. Cross-examination. The defendant can challenge the witness's credibility.
  What do the hearsay exceptions do? They let in statements against a criminal defendant where the declarant is not in court. By definition, hearsay is an out-of-court statement. How do we reconcile that with the 6A right to confrontation?

  Old Rule

  New Rule

  Ohio v. Roberts (1980) Government must show that the witness is unavailable Government must show that the statement is reliable because It fits within a firmly rooted exception The circumstances surrounding it make it likely that it was trustworthy (it has sufficient indicia of reliability) The fighting here is all about whether the statement is sufficiently reliable.

  Crawford v. Washington (2004) As soon as Roberts came out, people recognized that it was controversial, and Scalia in particular didn't like it. Confrontation isn't about reliability-- it's about confrontation. Government still must show that the witness is unavailable If the hearsay statement is "testimonial" then it comes in only if there was a prior opportunity to cross examine the witness face-to-face What is "testimonial?" That's where the fight is nowadays. Crawford doesn't offer a definition, but does give some helpful examples: the kind of thing that the witness might expect would be used in court (police fact gathering, etc.). Why? Because confrontation means the right to cross-examine someone who is giving testimony. What is "non-testimonial?" Lots of things: excited utterances, co-conspirator statements, statements of recent perception, statements in furtherance of medical diagnosis, etc. So Crawford doesn't end hearsay for prosecutors.

• Giles is about when you forfeit your right to confrontation (i.e., if you make the witness unavailable). The forfeiture by wrongdoing exception will be applied narrowly: you only lose that right if you do it with the intention of making the witness unavailable. Merely killing the witness is not enough: you need to do so with the intent of preventing his testimony.
• In a criminal case, the confrontation clause is the classic case of the Constitution trumping the rules of evidence.
• Article 9: Authentication
  This is about nothing more than establishing that a reasonable jury could find that something is what its proponent says it is. People tend to confuse authentication with relevance. Just because something is authenticated, doesn't make it relevant. But if an item is relevant, it still must be authenticated: to lay some foundation so that the fact-finder can determine that the item offered is in fact what it's asserted to be.
• Authentication exercise: business record. The Zapata hotel registration. Lots of foundation is laid. The nature of the document, the way it gets filled in, who is responsible, the fact that these records are kept regularly. This is all the foundation to get it in under 803(6). Then we go to the name of the guest, the date of the record. Very methodical.

  If you want to challenge the authentication, you can object, but it'll probably come in. Then in your defense, you try to undermine it. Still, you've made your record. The fact that a document is forged, e.g., doesn't mean that it's not authenticated. 901 just requires evidence sufficient to support a finding.

• Authentication exercise: physical evidence. Detailed description of the circumstances of finding the sprite can, documentation and cataloging of the evidence. List of all the ways that it has been recorded (chain of custody). How do you know it's the same item you dropped off?
• Authentication doesn't have to be perfect. It just has to be enough for a jury to reasonably find that it's what is claimed.

29 April

• Authentication. So we had the demonstration of authenticating a document (and laying a foundation for its admission as a business record under that hearsay exception). Note that laying the foundation for admissibility is different from authentication: authentication is nothing more than establishing by a preponderance of the evidence enough so that a reasonable factfinder could find that the thing is what it purported to be. A thing can be authentic and still not be admitted (i.e., either be irrelevant or excluded by some rule).

  Any document with writing on it is obviously an out-of-court statement. So you'll need to find a way to get it in. It's not enough just to verify what it is. In fact authentication is the easy part; substantive admissibility requires a little more.

  An item other than a document (the sprite can) still has the same authentication requirements: conclusion by a preponderance that the thing is what the proponent claims. Again, that's relatively easy, compared to explaining to the court why it should be admitted. Terms (synonymous) important to the authentication of physical evidence:

  • Evidentiary escort
  • Chain of custody

  The factfinder needs to be able to find by a preponderance that the state of the proffered item hasn't been altered or manufactured. There's no easy way, for example, to know how long a fingerprint has been on the sprite can-- if the defendant handled it after the police siezed it, it's not incriminating at all. In fact, it's misleading.

• Anyway, authentication is a realatively low standard of proof. Just sort of a commonsense standard. That's set up in 901, but then there's a nice list of examples.
• Gordon: judge Wyzanski again. Authentication of letters is the basis of an appeal. The court basically says that this dispute is poppycock-- all the letters had the defendant's address and phone number, all bore what looked like his signature, postmarks (NH and MA) coincide with times when the defendant was in those states, they're all on the same stationery, and the defendant introduced some of the replies to the letters. Clearly it was reasonable for the jury to find they were authentic.
• Chin Gum: and again with Wyzanski (as trial judge). Complaint about the chain of custody on a can of "smoking opium." Again, the law enforcement agent, the informant, and the chemist all identify the can in sequence. After the chemist has made his determination, who cares what happens to it? The defense can make the argument that the government's case is less believable because of their shoddy evidence-handling, but as a matter of authentication, there's no reason that the jury can't consider it. The parties can still argue about what weight it should be given.
• The jury just has to find that the item probably is what the proponent says. The judge's role is to decide whether a reasonable jury could find that.
• Bayer: Justice Jackson. The defendant's theory is that he was extorted, not that he was offering a bribe. The government says there's no corroboration for that. The jury wants some further instructions, and has a question about whether a disputed long-distance call was made. One of the co-defendants (the one claiming extortion) wants to re-open the evidence and offer the telephone company's business record to establish that a long-distance call supportive of the extortion theory was made (that co-defendant Radovich had made the call to make the extortionate demand).

  But they haven't offered this evidence during the case, and the judge says no: we're not going to re-open and insert an exhibit (a piece of paper that purports to be from the telco).

  Jackson says this is hard: if Bayer can put that document in, it undermines Radovich's defense. Also, the defendants were proposing to put this piece of paper in without even calling a witness-- no explanation of how it came to be there, and no opportunity to cross-examine (the name of the caller is listed on that paper as "Ravish:" probably a mistake, but you never no. Also, the slip says the call came from Arlington VA, not Washington, DC, where other testimony says the call came from). These things could be explained, but without a witness to do so, it's not really fair to stick it in there, and the trial judge did not abuse his discretion by refusing to admit the document.

  The moral: without proper authentication, there's reason to question whether a piece of evidence has actual bearing on the matter in question. Exhibits call for explanation, in other words.

• Rule 902: self-authentication.
  A lot of this comes down to:
  • Official government records that are "under seal." Government entities have unique seals. Nowadays we have embossed foil or paper. Notarizing, e.g. A seal with an attestation that the document is a true and correct copy or the original. Usually there's a signature attesting to that. A document with these traits can be moved into evidence without other authentication (relevance, of course, still has to be there). Lots of time you authenticate it anyway, so that you can develop the document's importance.
  • Foreign government documents. We treat these more or less like US government documents, for the purposes of authentication.
  • And then a whole list of other self-authenticating things. Some are fairly lax. Newspapers, for example: if there's no reason to doubt that it's the Wisconsin State Journal, there's no need for further authentication.
  You can, of course, challenge the authenticity of a self-authenticated document. If you've got good evidence that a document might be forged, you can keep it out, maybe, but that would be rare. And if it's admitted over your objection, you can still challenge the weight it should be given (i.e., its reliability or credibility) by the jury.

  The materials for past recollection recorded need to be authenticated, even though they themsleves are not admitted into evidence (but rather just read). That's a piece of cake: is this the thing you wrote down at the time?

• Note that the fact that digital evidence is in some ways unreliable (e.g., photos, or print-outs of e-mails), because it's so easily edited, does not change the process of authentication.

  One can argue that the evidence shouldn't be taken at face value, but that it's inaccurate, but if a jury could reasonably believe it, then it can be authenticated.

  Remember, once again: relevance is separate from authentication.

• The Best Evidence rule:
  The remainder of this lives in 1002. It's almost not worth talking about any more. Usually, a party can prove a point with whatever evidence the party chooses. There's no "best evidence" rule for most things. The only thing it pertains to is proving the contents of a writing or recording. It doesn't matter when one is just trying to show the existence of the document, or its condition. It's only when we're trying to show the content/substance of the document: in that case, use the original or a duplicate. Duplicates are the same (1003) unless there's a good reason to be suspicious about them.

  This really screens out justoral testimony about the contents of a document or recording, where there's no copy or original at all in sight.

  And 1003 tells us that the admissibility of a duplicate is only in doubt if the authenticity of the original is in doubt (the process of duplication may eliminate the evidence of alteration, in other words). If the original no longer exists, but there are questions about its authenticity, the duplicate is inadmissible.

  You can attack the weight that the jury ought to give the duplicate, but the duplicate comes in.

• Rule 1004:
  Exceptions to the best evidence rule, sort of.

  Spoliation. If you despoil evidence, the inference is that it would have hurt you, had it continued to exist. Omnia praesumuntur contra spoliatorem. Bad faith destruction of evidence permits an adverse inference.

  We can use testimony to prove the contents of a lost/destroyed document, unless the proponent lost or destroyed them in bad faith.(1)

  If the opponent has the documents and fails to produce them, the proponent can prove their contents by testimony.(3)

  (2), when nobody is at fault for the unavailability of the document, something less than the best evidence will suffice.

  This all is analogous to the parol evidence rule: generally speaking, you can't prove the contents of a contract by oral testimony.

• Duplicates are always as good as the original, unless there's a controversy about the authenticity of the original. The judge makes the initial decision about how the contents of a document can be proved, if at all.
• Rule 1006: Summaries
  Charts, etc., are sometimes more digestible than raw data. That's all well and good, but the underlying data must be made available to all parties, for examination or copying. Cell phone calls, bank records, etc.: this happens all the time.

  The underlying documents need not be offered into evidence (although they can be). But you have to make them available to the opponent with sufficient opportunity to challenge the accuracy of the summary.

  This is Air Safety Inc. v. Archbishop of Boston: plaintiff produces a summary of contract records and wants to submit them at trial, but hasn't ponied up the underlying records in discovery, and hadn't even given the final version of the summary document before trial. So the trial judge excludes the summary. Affirmed.

  We're not going to just rely on the say-so of one side.

  The fact that something isn't a summary of voluminous records, but is in fact a re-capitulation of other testimony or evidence (like, say, a chart that just explains/demonstrates something) can still be admissible. A pedagogical or demonstrative device, outside of rule 1006, can be admissible if it's useful to the jury (see Olson). In WI: the presentation of evidence needs to be helpful to the ascertainment of truth. If it's helpful to the jury in seeing patterns emerge, for example, we allow that sort of exhibit to be introduced into evidence. In WI.

• Privilege.
  Back to the illusion of codification.
  • Rule 501: privilege is the common law in criminal cases or in federal question cases. And in diversity cases, it's governed by state law. So, much of this is simply not codified.
  • What privileges are recognized in federal courts?
    • Attorney-client
    • Spousal (feds say the witness spouse holds the privilege): this is the right not to take the witness stand at all.
    • Marital communications: whether a statement in private by one spouse to another during the marriage can be admitted. (defendant spouse holds this privilege; actually they both do, but the defendant spouse can prevent the testimony, under Trammel)
    • Doctor/psychotherapist-patient
    • Maybe clergy (SCOTUS has never passed on this; it may be circuit by circuit)
    • ...and so on (5A, much?)
  • States have much more elaborate lists of privileges, along with exceptions. See Wis. Stats. § 905. We don't need to memorize that, but know that questions of privilege depend on cracking the book. And that includes in federal court: do courts in this privilege recognize a government informer privilege? Some WI privileges: more medical professionals (therapists, pharmacists), government's privilege to keep an informer's identity secret (there are exceptions, of course), domestic-violence/sexual-assault-counselor and victom (a recent innovation: 2001). These are pure legislative policymaking: taking relevant evidence off the table in the name of protecting some interest.
• Note that things said to a live-in boyfriend don't come under spousal communications.
• Note also that there's no parent-child privilege.