Skills and Values - Evidence

SKILLS & VALUES: EVIDENCE

LEXISNEXIS LAW SCHOOL ADVISORY BOARD Lenni B. Benson Professor of Law & Associate Dean for Professional Development New York Law School

Raj Bhala Rice Distinguished Professor University of Kansas, School of Law Charles P. Craver Freda H. Alverson Professor of Law The George Washington University Law School Richard D. Freer Robert Howell Hall Professor of Law Emory University School of Law Craig Joyce Andrews Kurth Professor of Law & Co-Director, Institute for Intellectual Property and Information Law University of Houston Law Center Ellen S. Podgor Professor of Law & Associate Dean of Faculty Development and Electronic Education Stetson University College of Law Paul F. Rothstein Professor of Law Georgetown University Law Center Robin Wellford Slocum Professor of Law & Director, Legal Research and Writing Program Chapman University School of Law David I. C. Thomson LP Professor & Director, Lawyering Process Program University of Denver, Sturm College of Law

SKILLS & VALUES: EVIDENCE John B. Mitchell Professor of Law, Seattle University School of Law

Rick T. Barron Senior Deputy Public Defender, Santa Barbara County Public Defender's Office

Library of Congress Cataloging-in-Publication Data Mitchell, John B. (John Barry), 1944Skills & values. Evidence I John B. Mitchell, Rick T. Barron. p. em. ISBN 978-1-4224-2246-5 (softbound) 1. Evidence (Law)-United States-Outlines, syllabi, etc. I. Barron, Rick T., 1945- II. Title. III. Title: Evidence. KF8935.Z9M58 2008 347.73'6-dc22 2008045121

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis, the knowledge burst logo, and Michie are trademarks of Reed Elsevier Properties Inc, used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc. Copyright© 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All Rights Reserved. No copyright is claimed in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material exceeding fair use, 17 U.S.C. § 107, may be licensed for a fee of 25¢ per page per copy from the Copyright Clearance Center, 222 Rosewood Drive, Danverc;. Mass. 01923, telephone (978) 750-8400.

Editorial Offices 744 Broad Street, Newark, NJ 07102 (973) 820-2000 201 Mission St., San Francisco, CA 94105-1831 (415) 908-3200 www.lexisnexis.com

MATIHEW6BENDER (2009-Pub. 3272)

INTRODUCTION These materials were created to assist you in incorporating lawyering skills into your substantive evidence class. They will give you the experience of thinking about and applying evidence doctrine as you would in real practice. At the same time, it will likely further your understanding of the underlying doctrine: most of our students have found that they have a much better grasp of the doctrine when they can see it in a practice context. Each chapter offers a stand-alone exercise which focuses on a particular rule under the Federal Rules of Evidence. (We envision chapters will be assigned to correlate with the particular rule you are studying in class.) The exercises - which often include documents, diagrams, photographs and trial transcripts - will require you to put doctrine into action. Sometimes you will make an argument to the trial court; other times, you will conduct discovery, interview witnesses, examine witnesses on the stand to lay evidentiary foundations, or voir dire those witnesses to weaken the foundation. Each chapter includes a "self-study" component. Here, we provide our approach to the exercise. They are not the answers, because the lawyering activities involved are not in the nature of true-false questions. Different lawyers will approach the same problem differently. The exercises involve doctrinal interpretation, judgment, strategy, argumentation, and often ethics. E-Materials

This Skills & Values book is enhanced by a LexisNexis Web Course which will give you access to online content tailored to the use of this book. Your professor will provide instructions on how to enroll in this Web Course. The online content includes: a video demonstrating the impeachment of a witness with an inconsistent statement and an omission using the witness's written statement; adversarial video arguments to which you will be asked to respond; a 911 recording; and transcripts with voice-overs illustrating an interview seeking information to satisfy conditional relevance, an examination laying the foundations for a business record, and a voir dire aimed at attacking the foundation for an excited utterance. The Web Course for this book also includes links to the Federal Rules of Evidence, the referenced Supreme Court cases, and the three case files that are woven throughout this book: The Swing Set Case, The Robbery Case, and the Domestic Violence Assault Case. v

Introduction Organization of Each Chapter

Each Chapter contains• An introduction that puts the chapter within the context of actual, day-to-day practice. • A listing of skills involved in carrying out the exercise. • The relevant Federal Rules of Evidence. • This estimated time for completing is indicated by the icon below, each representing 15 minutes.

I •

•

•

•

• •

The difficulty of the exercise is represented by diamonds".

•

1 -

5 "black

Your role in the exercise, whether counsel for plaintiff or defendant, and the particular case upon which the exercise is based. [Most of the exercises are based upon one of two hypothetical cases - the "Robbery case" (criminal) or the "Swingset Case" (civil) -the factual summaries of which are on the following pages.] The exercise. [Note: your Instructor may in addition provide you with a question based upon the exercise and the self-study section to which a short, written response is required.] A "do not proceed page" [While it would be easy to peek at the self study before working on the exercise, to do so defeats the whole purpose of this book, which is to teach and encourage you to think creatively like a lawyer in practice - there are no look ahead sections in real life.] The "self-study" section. Jurisdiction State: Wasa County: Dusant City: Santa Magnolia

vi

Introduction •

Dates 20XX = the current year 20XX-1 =last year; 20XX-6 = 6 years ago One last thing. Have fun; otherwise, what's the point? FACTUAL SUMMARY: THE ROBBERY CASE (CRIMINAL) Ed Sam has been charged with robbing at gunpoint the attendant at Day 'n Night Cleaners on August 15, 20XX-1 at 9:15p.m. According to the police investigation, the robber entered through a door in the alley behind the store, escaping the same way.

The sole eye-witness was the victim, Edward Miles, an employee of the cleaners. While Miles was "very shaken" when talking to police that night, he was able to give the police a description of the robber [5'9", 185 lbs, early 2o's, Caucasian, male, short brown hair, red jacket.] vii

Introduction Defendant was selected by the victim in a line-up in which the eyewitness told police, "#3 [the defendant] looks like the guy who robbed me." Ed Sam is 27 years old, Caucasian, 5'11", 185 lbs, short brown hair, a small "soul patch" goatee and, when arrested was wearing a red jacket with a thin white stripe along each sleeve. Other than the jacket, the government does not have any physical or forensic evidence. Ed has told his attorney the following: As a kid, he grew up in a rough neighborhood and was always getting in trouble. He dropped out of school at 16, amassing a juvenile record including petty thefts, fights, and a car theft, for which he spent a year in jail. A drunken fight on his 21st birthday led to another month in county jail, and to a decision to get his life on track. Ed first got his GED, went on to community college where he graduated with honors, and is currently the manager of a very successful grocery shopping service. He is engaged to a woman he met in community college (who is the administrative assistant to the head of a small software company), and plans to be married in the fall. At the time of the robbery, Ed was playing cards with four friends. All claim that, but for "about fifteen minutes" when Ed went to get beer, he was with them all night. Two of Ed's friends, Nate Leste and Joaquin Moore have criminal convictions for theft crimes.

FACTUAL SUMMARY: THE SWING SET CASE (CIVIL) Bill Hunter is suing the City on behalf of his 4 year old son, Kenny, who was seriously injured when the swing on which Bill was pushing him, completely collapsed when the chains suddenly dislodged from the wooden frame to which they had been attached. Bill's theory is negligence, based on the fact that bent nails, rather than bolts, were used to attach the chains holding the seat of the swing to the wooden frame of the swingset. As it turns out, that morning the Park Crew discovered that the bolts holding the swing on which Kenny was injured were cracked. The crew did not have any replacement bolts with them, so initially they removed the chains and swing from the frame. Because they did not know where to leave the swing, however, they nailed it back and twisted it around the frame, planning to return with a new bolt the next day. The crew then left. Apparently, someone climbed up the frame and unwound the swing and chain before Kenny and his dad arrived at the park. Kenny was rushed by ambulance to the hospital ER unconscious, and then sent to surgery. He had a ruptured spleen and severe head injuries, the latter resulting in permanent cognitive impairment. viii

TABLE OF CONTENTS Chapter 1

Conditional Relevance •••...••...•••.••• 1

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Chapter 2

Unfair Prejudice •••..•••..•••..•••..••• 7

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Chapter 3

Propensity •••••.•••••..•••..•••..••• 15

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Chapter 4

Habit and Business Custom ••...•••.•••• 25

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Chapter 5

Remedial Measures ..••..•.•.•••..••.. 31

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Chapter 6

Attorney-Client Privilege ..•••..••..••.. 39

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Chapter 7

Prior Convictions .•••...••..•...•••.•• 47

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Chapter 8

Impeachment with Inconsistent Statement and Omission from Statement ••...•••..• 57

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

ix

1

Table of Contents Chapter 9

Expert Witness . . . . . . . . . . . . . . . . . . . . . . . 65

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Chapter 10

Daubert . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Chapter 11

Definition of Hearsay . . . . . . . . . . . . . . . . . . 91

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Chapter 12

Admission by Silence . . . . . . . . . . . . . . . . . . 99

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Chapter 13

Excited Utterance . . . . . . . . . . . . . . . . . . . . 107

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Chapter 14

Constitutional Confrontation .......... . 117

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Chapter 15

Business Records . . . . . . . . . . . . . . . . . . . . 125

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Chapter 16

Former Testimony . . . . . . . . . . . . . . . . . . . 135

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Chapter 17

Authentication and the Best Evidence Rule . . . . . . . . . . . . . . . . . . . . . . . 143

THE EXERCISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 SELF-STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 X

Chapter 1 CONDITIONAL RELEVANCE INTRODUCTION This chapter deals with the application of conditional relevance within the context of an interview. Here counsel seeks predicate factual information that will satisfy the court that a "reasonable jury could find" [FRE 104(b)] the relevant "similarity" between the facts of the case and a demonstration/experiment. Most commonly, however, issues regarding conditional relevance will arise when counsel requires more than one witness to establish relevance of the evidence. In such circumstances, counsel will often make an "offer of proof," telling the court the nature and substance of the yet to be presented connecting evidence. An attempt to seek the admission of evidence before the attorney can establish the requisite factual foundation for admissibility often arises because witnesses are not always available to testify in the precise order that an attorney would like. Also, attorneys try to schedule various pieces of evidence and particular witness testimony so as to extract the optimal impact upon the jury. The decision of trial counsel to seek the conditional admission of evidence subject to the later proof of a fact essential to admission of the conditional evidence is fraught with risks, however. If the essential fact(s) cannot be proven, for whatever reason, unavailability of a witness or insufficiency of the evidence for example, then the judge will dramatically instruct the jury to disregard the evidence. During closing argument opposing counsel will point out the failure of proven facts essential to the proponent's case. Even though the absence of conditional evidence and the prerequisite fact may not seem crucial to winning, the impact of such a tactical blunder cannot be underestimated. Trial lawyers live for these kinds of situations. The thrill and drama of trial is amplified when tactical decisions such as those

1

2

SKILLS & VALUES: EVIDENCE

occasioned by conditional evidence occur. Trial lawyers are, by nature, competitive and cannot help but consider ways to enhance the persuasiveness of their evidence while diminishing that of their opponent.

CH. 1

CONDITIONAL RELEVANCE

3

EVIDENCE TOPIC: Conditional Relevance [FRE 401; 104(b)] SKILLS INVOLVED: Planning an interview to obtain information to fulfill an evidentiary foundation; understanding relationship between doctrine and fact collection. ESTIMATED TIME FOR COMPLETION:

II 30 minutes

LEVEL OF DIFFICUL'IY (1-5):

••

ROLE IN EXERCISE: You are the prosecutor in "The Robbery Case" [See factual summary, page vii].

THE EXERCISE

You are preparing for trial. You would like to put Detective Greene on the stand to testify about a round trip test drive he did between the location of the supposed card game and "Day 'n Night Cleaners." From interviews with both Defendant Sam and his supposed alibi witnesses, Sam was away from the card game for "around 15 minutes." Detective Greene is prepared to testify that he drove roundtrip between the location of the card game and the site of the robbery in a little over 8 minutes - which gives Sam plenty of time to leave the game, rob the cleaners, and return within 15 minutes. You are now preparing to interview Detective Greene about his test drive. In doing so you want to find out information that will support your position that the test drive is relevant. Keep in mind that as a matter of conditional relevance, the specific conditions of the test drive must be substantially similar to those on the date and time of the robbery. Also, keep in mind, that even if the judge finds the testimony about the test drive relevant, it still must be persuasive to the jury. List the specific information you will seek about the test drive in the interview.

4

SKILLS & VALUES: EVIDENCE

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

CH. 1

CONDITIONAL RELEVANCE

5

SELF-STUDY As you no doubt recognized, in this instance you needed to consider the often confusing rule relating to "conditional relevance."

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. FRE 104(b) In this case, the "condition of fact" upon which the relevance of the test drive is predicated is that the relevant circumstances under which Detective Greene drove the route were sufficiently similar to those that the defendant would have encountered had he made that drive on the night of the robbery. Plainly, if the robbery occurred during rush hour the day before a holiday in a blizzard, while Greene drove in a good weather at 3 a.m., a court would rule that no reasonable juror could find value from the Detective's test drive. With this in mind, we would have been certain to obtain information on the following: • Time of day [of the robbery; when Sam left the card game] • Time of sunset on day of robbery and day of test drive [in case Sam would have driven in the dark, and the officer when it was still light.] • Day of week • Route • Speed • Weather conditions • Traffic conditions [e.g., road construction, detours] • Any special events [e.g., parade, street fair, day before holiday, major "shopping day," sporting event in area, etc.] Are there other areas you would pursue? Why? Visit the LexisNexis Web Course that was created for this book to view the transcript (with voice-over) of Detective Greene by the prosecutor to obtain FRE 104(b) information.

Chapter 2 UNFAIR PREJUDICE INTRODUCTION

~

This chapter focuses on claims of unfairly prejudicial evidence (FRE 403) and the circumstances when the proffering party must accept a less prejudicial form of evidence to prove their point. Each attorney and the judge presiding over a trial has a different set of goals and priorities. Both counsel would like all of the evidence favorable to their side admitted into evidence and all of the opponent's evidence excluded. The judge, on the other hand, wants as short, quick, simple and fair trial as possible, sometimes with an emphasis on short and quick. These competing interests often play out in the application of Rule 403. With the judge at times desiring to hurry the trial along by excluding evidence, and opposing counsel seeking exclusion by playing down the probative value versus the substantial prejudicial effect likely to be caused by admission of the relevant evidence, the proponent often must wage a strong battle to gain admission of the desired evidence (even though the language of FRE 403 would appear to place a serious burden on the party seeking exclusion; i.e., even if unfairly prejudicial inferences are reasonably likely to flow from the evidence, it will not be excluded unless it is "substantially more prejudicial" than probative). Arguments under 403 have a predictable pattern. The party relying upon 403 will (1) try to explain how the probative value is weak (2) give concrete ways the jury will misuse the evidence (3) will try to "negotiate" (e.g., argue to admission of some photos of the defendant, but not other). The opposing party will (1) try to bolster the relevance of the evidence (2) contest the opposing party's claim of unfair prejudice ("I refuse to believe that people in this day and age have such a negative attitude towards the homeless as counsel contends") and emphasize that under 403 the prejudice must "substantially" outweigh the probative value (3) indicate that the opposing party can request a cautionary instruction under FRE 105.

7

8

SKILLS & VALUES: EVIDENCE

EVIDENCE TOPIC: Exclusion of Relevant Evidence on grounds of prejudice, confusion, or waste of time. [FRE 403] SKILLS INVOLVED: Analyzing a complex case; locating core rationales of case and precise case reasoning; writing persuasively. ESTIMATED TIME FOR COMPLETION:

Ill 6o minutes LEVEL OF DIFFICUL'IY (1-5):

····~ ROLE IN EXERCISE: You are the attorney for the plaintiff in "the Swing Set Case" [See factual summary on page viii.] THE EXERCISE

Plaintiffs counsel, as part of your case you plan to present this photo of the swing set where Kenny was hurt.

CH.2

UNFAIR PREJUDICE

9

The City has filed an in limine motion (an evidentiary motion generally heard at trial before the jury is selected) opposing introduction of the photo. The following is the argument paragraph of that written motion:

Argument I. THE PHOTO OF THE SWING SET PROPOSED TO BE

BROUGHT IN EVIDENCE SHOULD BE EXCLUDED UNDER FRE 403 SINCE IT IS SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE GIVEN THAT A SIGNIFICANTLY LESS PREJUDICIAL, BUT EQUALLY PROBATIVE, ALTERNATIVE PIECE OF EVIDENCE CAN BE OFFERED. The photograph plaintiff proposes to bring before the jury is not of a bare swing set, but one filled with small, innocent children happy at play. The prejudicial impact is apparent. The photo visually ties the mechanical instrument which is at the center of this case (i.e., the swing set) to our natural and powerful emotional feelings towards children at play. In the context of this case, the photo all but screams "defendants have indifferently placed a dangerous swing set that hurts innocent children"! As such, the photo fall squarely under the exclusionary ambit of FRE 403 ("Probative value substantially outweighed by prejudice") since an equally probative but significantly less prejudicial alternative is available to the plaintiff - a simple photo of the swing set without the mass of children, or blueprints, or artist rendering. As the United States Supreme Court stated when interpreting FRE 403 in Old Chief v. United States. 519 U.S. 172 (1997) "[the full text of the Old Chief case can be found in the LexisNexis Web Course that was created for this book]." As for the analytical method to be used in Rule 403 balancing, two basic possibilities present themselves. An item of evidence might be viewed as an island, with estimates of its own probative value and unfairly prejudicial risk the sole reference points in deciding whether the danger substantially outweighs the value and whether the evidence ought to be excluded. Or the question of admissibility might be seen as inviting further comparisons to take account of the full evidentiary context of the case as the court understands it when the ruling must be made. This second approach would start out like the first but be ready to go further. On objection, the court would

10

SKILLS & VALUES: EVIDENCE

decide whether a particular item of evidence raised a danger of unfair prejudice. If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well. If an alternative were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk.

Id., at 182-83 {emph. Added) The ready availability of a photograph showing what is relevant to the Plaintiff's case (the swing set) devoid of what is unfairly prejudicial (the host of children) dramatically reduces the probative value of the proffered photo under Old Chiefs calculus, rendering it in admissible under FRE 403 Write a reply of Chief].

1-2

pages [limit your citations to 403 and Old

CH.2

UNFAIR PREJUDICE

11

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

12

SKILLS & VALUES: EVIDENCE

SELF-STUDY

What follows is example of a possible response. Note that it emphasizes (1) defendant's failure to recognize the "narrative" (i.e., story) limitation built into Old Chief(2) 403's standard that even evidence with the potential for the jury drawing unfairly prejudicial chains of inference will be admitted unless the unfair prejudice "substantially outweighs" the probative value. Again, this is an example; it is not "the answer." Trial courts could go either way on this one. THE PHOTO DOES NOT RUN AFOUL OF FRE 403 BECAUSE IT IS HIGHLY PROBATIVE AND IS PART OF PLAINTIFF'S TELLING OF THE "RICH NARRATIVE" WHICH WOULD BE LOST WITH THE ALTERNATIVE PHOTOGRAPH DEFENDANT PROPOSES. Defendant does not question that plaintiff is entitled to use demonstrative evidence to show the jury the swing set on which Kenny Hunter was so severely injured. That instrumentality of Defendant's is, after all, at the crux of the entire case. Rather, Defendant takes language from Old Chief out of the context specified by the Court, and then uses that de-contextualized language to draw the conclusion that Plaintiff is as well served by a stark photo of the swing set as by the photograph Plaintiff currently proffers. In Old Chiefs construct of "substantially the same or greater probative value", Id., at 183, however, the Court conceived of such "substantial equivalence" as a function of a party still being able to tell the same story, with the same "evidentiary richness and narrative integrity". I d., at 183. In fact, in the sentence immediately following Defendant's quoted language, the Court states, "[a]s we will explain later on, the judge would have to make these calculations with an appreciation of the offering party's need for "evidentiary richness and narrative integrity." Id. (emph added). While Old Chief was a criminal case, there is no logical reason why the Court's insistence that parties be free to present evidence to effectively tell their client's story should not apply equally in the civil arena. Here the children around the swing set are not superfluous to Plaintiff's narrative of civil negligence. That photo portrays the factual and legal reality of Defendant's duty of care in a way in which a stark photo of the swing set, detached from the reality of its

CH.2

UNFAIR PREJUDICE

13

use, would not. As such, there exists no alternative evidence with equal probative value under the Old Chief calculus. Moreover, FRE 403 does not automatically preclude otherwise relevant evidence even if the fact finder might engage in chains of inference that are unfairly prejudicial. Such unfair prejudice must "substantially outweigh" the probative value of the proffered evidence. The photo is probative and not unfairly prejudicial under FRE 403 because it shows children on the swing set and playground apparatus so the jury can see the size of the swing and other apparatus relative to the children as well as possible distance of fall, terrain and sod in the landing area, other distractions in the area, etc. This is not a photo showing some other child lying on the ground in agony, or the bloody spot left after Kenny's fall. If Defendant wishes, it can seek a cautionary instruction under FRE 105 as to the legitimate purpose of the photo.

Chapter 3 PROPENSITY INTRODUCTION This chapter deals with the admission of uncharged bad acts and crimes. While FRE 404(b) issues can arise in both civil or criminal cases, it is most common in the criminal arena. The question of whether a particular prior bad act or crime of defendant's may be brought into trial often literally puts the outcome of a criminal case in the balance. Defense counsel may have a strong case, eager to cross-examine a set of weak eye-witnesses to an alleged robbery. Then the prosecution indicates that it wants to put on evidence that defendant has committed another robbery. If permitted, this evidence will very likely convert a strong defense case into a loser. Regardless of the rationale for admission of the evidence, the jurors will almost assuredly see the defendant as "a robber", and vote accordingly. On the other hand, if the defense succeeds in keeping this prior incident out, the case again becomes very triable, raising the likelihood of a good plea offer or even acquittal. Under FRE 404(b), the moves of the respective advocates are predictable. The prosecutor will argue that the proposed evidence is being brought in for "another purpose" than propensity (e.g., motive or opportunity, or similarly of plan). Defense then has four potential lines of attack: (1) insufficient evidence to support the claim that defendant committed the prior act or crime; (2) an argument that the other purpose relied on by the prosecution is really not "at issue" in the case (e.g., in case where defendant who is charged as an accomplice as the getaway driver has told police she was with the driver but had no knowledge of the crime or intent to aid, evidence of a prior act to show identification (i.e., she was the driver) would go to another purpose which is not at issue in the case); (3) that even if the proposed "other purpose" is at issue, juror can not reasonably draw the inferences needed to establish the relevance of the prior act to the "other purpose"; (4) FRE 403. In this regard, it is not uncommon for the prosecution to be able to establish the relevance of the prior act to the "other purpose," given the liberal thrust of FRE 401. Yet the risk of unfair prejudice for almost any prior act or crime is obviously great. Exclusion under FRE 403 in practice is the main grounds for exclusion of prior acts and crimes offered by the prosecution. 15

16

SKILLS & VALUES: EVIDENCE

EVIDENCE TOPIC: Propensity Evidence [FRE 404(b)] SKILLS INVOLVED: Understanding an evidence rule, including finding ways in the text of the rule to counter assertions by an adversary; meeting objections based upon multiple rules [FRE 404 (b), FRE 403]; using demonstrative evidence to support evidence argument; planning responses to anticipated questions by court (or opposing counsel). ESTIMATED TIME FOR COMPLETION:

45 minutes LEVEL OF DIFFICULTY (t to 5):

••••

ROLE IN EXERCISE: You are the Prosecutor in "The Robbery Case" [see, factual summary, at page vii.] THE EXERCISE

Prosecutor. When you went to the scene of the robbery of Day 'n Night Cleaners, you were surprised to learn that Belmont Liquors had previously occupied the same space as the current location of Day 'n Night Cleaners. That was significant to you because you knew that 7 years ago, when defendant Sam was 20 years old, he plead guilty to shoplifting a 6-pack of beer and some beef jerky from Belmont Liquors. When defendant had stolen the beer and beef jerky, he had entered from an alley (see diagram) through a door leading to a basement under the store (see photo). He had then proceeded up a staircase from the basement to the store, and entered through a door opening to the back of the liquor store. He was spotted by an employee, chased and caught in the basement as he was heading back to the door to the alley.

CH. 3

PROPENSITY

17

18

SKILLS & VALUES: EVIDENCE

The robber of Day n' Night Cleaners also had entered from the alley through this same basement door. After confirming that the layout as represented on the diagram, and the door as it appears in the photograph, were the same in all relevant respects 7 years ago when the defendant was caught shoplifting, you decide you want to put the owner of the liquor store on the stand to testify about the defendant and the shoplift. You are certain the defense counsel will argue that all this is inadmissible "propensity" evidence [FRE 404(b)] "i.e., because defendant stole before, he's the kind of person who has no respect for laws protecting other's property and would steal again"; but you plan to argue that this evidence is relevant for "another purpose" other than the one forbidden by FRE 404(b ). You will argue that this evidence is being brought into show that Ed Sam had the knowledge that there was a way to enter Day 'n Night Cleaners through a basement door accessible in the alley, thus providing him the opportunity to come through the back and quickly gain control of all the employees. But, you must be prepared for some tough questions you can anticipate the Judge (and/or opposing counsel) will raise: (1) Look at the Judge's questions in the following chart. Can you answer these questions? Write out your responses in the space provided. (2) Also, would you use the photo and diagram in your legal argument regarding FRE 404(b)? If so, specifically how?

CH.3

PROPENSITY

19

(3) You have come up with some plausible "other purposes" for the theft from the liquor store so as to satisfy FRE 404(b). But in your heart-of-hearts you know that you don't really care about this prior crime except for your belief that if it is admitted - even with FRE 105 instructions that it may not be used for forbidden propensity logic the natural tendency of the jury nevertheless will be to see and use the liquor theft as "propensity" evidence. Is there any problem with trying to get this evidence in front of the jury so long as you assert legitimate grounds under FRE 404(b)? JUDGE'S QUESTIONS This was years before the robbery; the connections are a bit attenuated, aren't they? Wouldn't any of the countless people who've gone through this alley since defendant's shoplifting arrest also have seen the door to the basement? That doesn't really narrow the pool very much. How do you respond to defense counsel's objection that even if this evidence marginally shows knowledge and opportunity, it is nevertheless barred by FRE 403? Even if it is relevant to your case that the defendant had once entered that store space from the alley, why does the jury have to know any more than that once he had entered and exited the liquor store that back way? Why for your purposes do they have to know that he was apprehended or convicted of shoplifting? Defense counsel has offered to stipulate as follows: "At all times pertinent to this case the defendant, Ed Sam, was aware that there was a back entrance to the Day 'n Night Cleaners that let in and out of the interior of that establishment." If I read that stipulation to the jury during Jury Instructions doesn't that accomplish what you, the prosecutor, want without unnecessarily prejudicing the defense with evidence of a prior crime committed by the defendant?

YOUR ANSWERS

20

SKILLS & VALUES: EVIDENCE

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

CH. 3

PROPENSITY

21

SELF-STUDY 1.

Judge's Questions- What follows again is our best try; not the answers. It is very conceivable that a particular judge would find our answers unconvincing and exclude the evidence. You do not win them all, but you should present a carefully considered, legally plausible position for them all in order to maintain the judge's confidence that you know what you're doing.

JUDGE'S QUESTIONS

YOUR ANSWERS

This was years before the robbery; the connections are a bit attenuated, aren't they?

No, Your Honor. That is a matter of the weight of the evidence, which is for the jury to decide. This is hardly something the defendant would forget since he had committed a crime using what I think Your Honor will agree was unusual method of entering the store space. We're not claiming that this method of entry is "signature like," so as to infer identity. But the fact that he not only knew about, but had previously used this exact method of entry and used this exact method of entry and escape surely provides knowledge and opportunity that would be lacking to most.

Wouldn't any of the countless people who've gone through this alley since defendant's shoplifting arrest also have seen the door to the basement? That doesn't really narrow the pool very much.

Your Honor, we are not claiming that this is overpowering evidence of guilt. No doubt others know this information as Your Honor points out. But this back entrance off an alley is still one unlikely to be known by most in the city; especially since it is an unmarked door down a stairwell. Why would most driving down that alley even notice? The fact that the defendant knew this information makes it more likely that he is the man who entered through that door with a gun in hand on August 15, 20:XX-1. This evidence helps; it make the fact of defendant's identification as the robbery "more probably ... than it would be without the evidence [FRE 401]," and that is all 401 requires.

22

SKILLS & VALUES: EVIDENCE

JUDGE'S QUESTIONS

YOUR ANSWERS

How do you respond to defense counsel's objection that even if this evidence marginally shows knowledge and opportunity, it is nevertheless barred by FRE 403?

First, Your Honor, FRE 403 requires the defense to establish that the evidence is substantially more unfairly prejudicial than probative. That's very, very heavy burden which defendant can not carry here. All the jury will be presented with is a misdemeanor shoplift of beer and snacks by a 20 year old. No violence, no weapons; something the jurors will likely see only as evidencing immaturity and bad judgment. In any event, we would not object to a limiting instruction under FRE 105.

Even if it is relevant to your case that the defendant had once entered that store space from the alley, why does the jury have to know any more than that once he had entered and exited the liquor store that back way? Why for your purposes do they have to know that he was apprehended or convicted of shoplifting?

We are trying to bring in the conviction here. As to the defendant being caught, however, without knowing about the shoplifting, the jury is denied signification information needed to evaluate this evidence. The shoplift explains why after 7 years, the owner of the liquor store could remember that the defendant had entered and left through this back way.

Defense counsel has offered to stipulate as follows: "At all times pertinent to this case the defendant, Ed Sam, was aware that there was a back entrance to the Day 'n Night Cleaners that let in and out of the interior of that establishment." If I read that stipulation to the jury during Jury Instructions doesn't that accomplish what you, the prosecutor, want without unnecessarily prejudicing the defense with evidence of a prior crime committed by the defendant?

No, your Honor. The prosecution bears the burden of proof, and a very heavy one at that. For that reason, it has consistently been held that the prosecution can not be curtailed in how they choose to try their case by forcing it to accept a stipulation. Further, in this case the stipulation does not correspond in anyway to the rich narrative the proffered evidence presents. Defendant did not just know about this entrance - a piece of knowledge itself which the evidence would demonstrate to be relatively unique among the population - but he actually used this unmarked entrance, climbed a back stair, entered the same space as were the Day 'n Night Cleaners now resides, and fled the same way ... all to commit a crime! A stipulation he knew about the entrance hardly replicates his unique knowledge and involvement with that particular mode of entry.

CH. 3

2.

PROPENSITY

23

Use of demonstrative evidence-

Different people learn in different ways. Some people learn by reading, some by watching, some by listening, some by doing. One of the drawbacks of trial by jury is that most of the information is imparted to the jury by witnesses testifying orally from the witness stand. Information that engages more than one of the senses of a juror is more likely to be absorbed and processed than information that only involves a juror's hearing. Demonstrative evidence such as photographs, diagrams, exhibits, etc. are a welcome break from the monotony of oral testimony and thus are an effective way to impart vital information to a jury. Therefore, it is not uncommon to see dazzling audio-visual presentations by both plaintiff and defendant counsel in an attempt to capture the attention of jurors in both civil and criminal trials. In this case, visuals may help your legal argument; certainly, they will make the argument easy for the judge to follow. The photo and diagram provide a visual image which supports the core idea that few driving through the alley (which will be most who go through the alley) or even walking through would connect that anonymous basement door to a method of access to the cleaners. Again, the demonstrative evidence will make it easy for the court to follow your argument, and will tend to focus the judge on images supporting your position. As to the mode of use, in addition to being included in your brief, and copies provided at the time of argument to the court and opposing counsel, the visuals can be mounted on an easel, placed on an overhead or Elmo, or on a CD-Rom which projects directly on a computer screen in front of the Judge. 3. Offering evidence in hopes jury will misuse itThe concept that evidence may be admissible for one purpose but not another is embedded in the Federal Rules of Evidence, and manifested in FRE 105 concerning cautionary instructions when the admission of evidenced is premised on such limited purpose. At the same time, a lawyer may not ethically "allude to any matter that the lawyer does not reasonably believe is relevant..." Model R. Prof. Conduct 12(e). Here we get to the core of the notion of one's personal values as an advocate. The judge will only allow the liquor theft if she finds it relevant. Ethics rule 12(e) would thus not literally apply. But as prosecutor, you are not trying to present this evidence for its relevant, permissible inferences; rather you are offering the evidence in the hope that the jury will use it for

24

SKILLS & VALUES: EVIDENCE

evidentiarily impermissible and unfairly prejudicial "propensity" reasoning. At the least that seems dishonorable, and you have to ask if that's who you wish to be in your career. In fact it may even cross ethical boundaries given that here you are the prosecutor, bound by the special ethical duty "to seek justice, not merely convict." Model R. Prof. Conduct 7(A)(3).

Chapter 4 HABIT AND BUSINESS CUSTOM INTRODUCTION This chapter deals with evidence concerning Routine Business Customs or Practice. When considering the idea of using habit or routine business practice evidence, you should recognize that this evidence permitted by FRE 406 is used as a proxy for a live, percipient witness. Imagine a case where one issue concerns whether a party stopped at a particular stop sign on the day in question. Bringing in a party's habit of always stopping at a particular stop sign so as to be able to argue that he would have stopped at that sign on the day in question, is meant to have the same evidence effect as if you put on a witness who testifies "I was at the corner of 4th and Boylston on March 15th at 4pm and I saw the defendant pull up to the stop sign for eastbound traffic and stop". In labeling such behavior as "habit" as opposed to "character" (which is generally forbidden) courts tend to look at whether the behavior is consistent over a large number of instances and is done with minimal conscious cognition (i.e., almost automatic). Similarly a routine business practice that every customer is given a receipt and asked whether they want to be given the receipt or have it placed in the bag is the evidentiary equivalent of testimony that "I was standing behind the plaintiff in line and I saw the cashier hold the receipt in front of plaintiff and ask 'do you want the receipt or should I put it in the bag?"' In this regard, FRE 406 finds particular use for businesses. After all, if a party denied being given a receipt upon purchase at Wal-Mart, how would you even locate the cashier who rang her up maybe a year ago? And even if by some miracle you somehow located the cashier, how would he possibly recall this one among thousands and thousands of transactions? In putting on evidence of routine business practice, you must think about persuasiveness; i.e., why should the juror be confident the practice is always followed? Evidence concerning the importance to the business that the practice is always followed, written policies, training, reinforcement by supervisors and such are some ways to strengthen the inference that the routine practice would have been followed in the particular instance.

25

26

SKILLS & VALUES: EVIDENCE

EVIDENCE TOPIC: Business Custom [FRE 406] SKILLS INVOLVED: Translating a concept in a Rule (i.e., "Routine Practice") to correlate with a factual pattern; seeking information both to fulfill the evidence foundation and to make evidence persuasive for the fact finder. ESTIMATED TIME FOR COMPLETION:

II~ 37·5 minutes LEVEL OF DIFFICUL'IY (1 to 5):

···~ ROLE IN EXERCISE: You are a City Attorney defending a civil suit against a condominium association which claims that City workers for the Water Department caused extensive damage to plumbing throughout the condo complex. THE EXERCISE

City Attorney, you are representing the City against a claim by the Sceneview Condominium Association that the action of members of the City's Water Department caused over $25,000 damages to plumbing throughout the condo complex. From your investigation and review of City documents, it appears that most of the facts are not in dispute: On August 26, 20xx, City workers from the Water Department were fixing a leak in their lines in front of the Sceneview Condos. After the workers left, the condo manager turned back on the water to the units. Within minutes, all through the complex, toilets would not stop running, leaks appeared in hoses attached to water heaters and washing machines, and faucets plugged up with a fine slit. That fine silt was in all the complex's plumbing and was the result of the City's work on its own line. The alleged damages, moreover, represent reasonable costs for plumbing work of this magnitude - flushing all the lines, replacing hoses, replacing toilet mechanisms, and such. What is in dispute is this: According to the head of the Water Department, everyone at the department knows that this can happen with these type of repairs. So, the head of the particular repair crew always tells the homeowner, tenant, or in a case like this, the condo manager, that after the City's

CH.4

HABIT AND BUSINESS CUSTOM

27

repairs are done, and before turning the water inside the dwelling back on, first run an outside faucet (e.g., a garden hose) for 15 minutes to flush all dirt out of the line. Since the plaintiff did not do this, the harm is the result of plaintiffs failure to take reasonable action after being clearly informed by the City about the importance of running an outside faucet. The problem for the City is that the Condo manager adamantly denies being told anything about running outside hoses before turning the water back on, and the head of the crew who would have talked to the manager has since left the area and can not be located. In short, you have no witness to contradict the manager on this crucial point. Since the head of the Water Department is equally adamant that, "that's nonsense; there's no way we wouldn't have told the manager," you decide that the only way to present evidence that the manager was in fact told about the process of running an outside faucet before turning on the water for inside the dwellings is FRE 406 ["Evidence of the ... routine practice of an organization .. .is relevant to prove that the conduct of the ... organization on a particular occasion was in conformity with the ... routine practice"]. You want to put the Department head on the stand to testify about the Water Department's "routine practice." List the specific information you would seek from the department head in order to: develop the evidentiary foundation needed to gain admission of the "routine practice" [FRE 406] of "always telling the home owner to run a hose first," and (2) to make the routine practice appear to the jury to be one that would have been carried out on August 26, 20xx at the Sceneview Condominiums. (1)

28

SKILLS & VALUES: EVIDENCE

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

CH.4

HABIT AND BUSINESS CUSTOM

29

SELF-STUDY In order to use Routine Practice to prove a fact in dispute, as here where you as City Attorney are seeking to prove that the Condo Manager was informed of the need to turn on an outside faucet and run it for fifteen minutes to flush the pipes, you must prove the existence of the routine practice. We would seek the following information. Can you see why the answer(s) to these questions will make the evidentiary foundation for FRE 406, and the persuasiveness of the testimony if admitted, stronger or weaker? • Is this "routine" in writing? Where? If it is in writing, why would workers read it? [In order to prove the existence of the routine and the knowledge of the crew chief you might consider asking the Water Department chief if there is a Policy and Procedures Manual or similar document that sets forth responsibilities of work crews and/ or their head regarding their duty to inform homeowners in situations similar to the one at hand. If so, you should obtain a copy of that manual.] • If there is no written policy, are crew chiefs told orally? When? By whom? What are they told?

• Why (specifically) would the crew chief know about telling this to the homeowner? [Is there a general training offered water department employees that covers this practice of notifying homeowners? Did the Crew head in this case receive training regarding the routine? Was he given a copy of any manual? Often employees are given a document to sign where they affirm that they have read and accepted each and every provision of the manual. You should consider what you might do if a signed affirmation is part of the Water Department policy and the Chief of the Department cannot produce the document with the crew chiefs signature.] • Is there a basis for asserting that the crew chief followed the policy in the past? [In proving that the crew chief followed the routine, consider the ways in which you might prove that including: Testimony of present or former crew members, written notice provided to homeowners, testimony of homeowners who had been informed of the need to flush pipes by this crew chief, etc.] • Does the crew chief carry anything in writing to give the homeowner regarding this process? If so, what are they supposed to do with the document (e.g., stick to homeowner's door with adhesive on back of document)? If not, how is a homeowner to

30

SKILLS & VALUES: EVIDENCE

know about this if, e.g., the work is done when the homeowner is away on vacation? • Has anyone ever been disciplined for not telling a homeowner about first draining water through an outside faucet? When? What was the discipline? Why would current workers know about this incident? • Has the Department had experiences when a crew chief didn't tell the homeowner? When? What happened? What (if anything) did the Department do after that? [In this case opposing counsel might successfully argue to the judge that you must also prove the following: That the head of the City Repair Crew involved in this case knew of the Water Department routine, AND 2) There is some evidence that the crew chief has followed that routine in the past.]

1)

Chapter 5 REMEDIAL MEASURES INTRODUCTION This chapter focuses on the rule prohibiting admission of evidence of subsequent remedial measures. Plaintiffs attorney in a personal injury case wants the evidence of a subsequent repair or change in order to convince the jury that the defendant's product or premises were unsafe or dangerous at the time of the plaintiffs injury. Defendant's counsel wants the evidence excluded for fear the jury will view the repairs as completed for precisely the same reason that plaintiff wants the evidence admitted. Federal Rule 407 was established on the theory that permitting evidence of subsequent repairs to prove liability would discourage making such repairs. As such, it promotes the public policy interest in providing a safe environment. The scope of FRE 407 covers any subsequent remedial measure, and not just physical repairs. A seminar on appropriate conduct between genders in the workplace held "subsequent" to a sexual harassment incident would fall under 407. Experienced plaintiff counsel can usually identify several uses of the evidence regarding subsequent remedial measure which would make the evidence admissible outside the prohibition of FRE 407, if during their direct or cross an opposing witness foolishly controverts ownership, control, or feasibility of instituting the measure. Counsel on cross-examination may even try to lead the witness to controverting, e.g., questioning about feasibility so as to open the door for admission of the facts concerning the subsequent measure. Also, since Rule 407 only bars questions like, e.g., "didn't you change the design of the engine after the accident," counsel is free to cross-examine about the substance of the measure, just not that the party actually put the measure in place. So counsel could ask, e.g.,- "there were other engine designs available," "One of these designs was the FX-turbo [the one the party changed to]," "Now, the FX-turbo would have been less likely to lose power on turns than the engine in plaintiffs jet ski because ... ," etc. As with many issues regarding admissibility of evidence for some purposes and inadmissibility for specified purposes, the ultimate fate of such evidence often turns on the creativity of the individual proponent of opponent lawyer. The exercise in this chapter encourages 31

32

SKILLS & VALUES: EVIDENCE

creativity of plaintiffs counsel. There is, however, a significant difference between your creativity to develop alternative routes for admission of your evidence, and attempting to bring in blatantly inadmissible evidence under some unjustifiable pretense.

CH. 5

REMEDIAL MEASURES

33

EVIDENCE TOPIC: Subsequent Remedial Measures (FRE 407) SKILLS INVOLVED: Anticipate evidentiary objections to piece of evidence attorney intends to proffer; Interpret rule and assess whether legal arguments(s) against application of rule can plausibly be put forth; Develop strategies to maximize position in the event that opposing counsel's objection to your proffered evidence is sustained by court; assessing ethical lines in attempting to skirt impact of adverse evidentiary ruling. ESTIMATED TIME FOR COMPLETION:

Ill~ 52.5 minutes LEVEL OF DIFFICULTY (t to 5):

••••

ROLE IN EXERCISE: You are the attorney for the Plaintiff in "The Swingset Case" (see, factual summary page viii.).

THE EXERCISE

You interviewed the Plaintiff's neighbor the week following the accident. According to the neighbor, the day after the accident City workers removed the swings and supporting chains from the frame of the swingset, and then began what appeared to be "experimenting" with various sized bolts and fastening devices. Two days later they reinstalled the swings using thick bolts connected to the metal rings. You photographed the new swingset installation. Also, you've obtained City work orders in discovery that confirm the "experimentation" (and the subsequent installation you photographed.) You want the jury to know all this. It seems completely relevant (FRE 401): The City's actions show not only what was a reasonable response to their duty of care in installing the swingset (i.e., heavy bolts not bent nails) but also that the City had ready access to staff who had the technical expertise to install the swings properly, and that proper installation involved absolutely no technical, mechanical, or economic difficulties. As you no doubt recognize, however, Defendant's inevitable reliance on FRE 407 to exclude all your evidence of the City's work on the swingset following the accident will present a formidable challenge to your efforts to bring this evidence in front of the jury.

34

SKILLS & VALUES: EVIDENCE

For this Assignment: (1) are there any legal arguments you can make that FRE 407 does not apply to this case? (2) assume the judge rules against you and sustains defendant's FRE 407 objection, precluding you from bringing in evidence about the reinstallation of the swings using bolts. Nevertheless, is there a way you can question a witness from the parks department to get out useful evidence about the efficiency of the bolts without contravening FRE 407? [Hint: see the discussion of the "fx-turbo" in the introduction of this chapter.] Clearly write out in an outline your answers to (1) and (2). (3) Plaintiffs attorney. You just had an inspiration; you might be able to circumvent any FRE 407 objection by bringing the repairs in front of the jury under the guise of Authentication - You have a photo of the swing set attached by bolts. Imagine you put a neighbor who was in the park at the time of the accident on the stand and conduct the following direct examination: PA [Plaintiffs Attorney]: I'm showing defense counsel what has been marked a Plaintiffs #6 for Identification. May I approach the witness, Your Honor? You may approach. JUDGE: PA: I'm showing you what's been marked Plaintiffs #6 for Identification ... Do you recognize what that is? N [Neighbor]: Yes. PA: what is it? It's a photograph of the swingset at the N: playground where Kenny got hurt. PA: How do you know that? I take my own kids to that park. I recognize N: the park, the surrounding houses, and I'm standing to the left of the swing in this photo. PA: Do you know when it was taken? A week after the accident. N: Does it fairly and accurately reflect what the PA: swingset looked like at the time Kenny was hurt? N: Pretty much. PA: Is it different in any way? N: Yeah. On the day of the accident those chains were hung with bent nails; in this

CH. 5

REMEDIAL MEASURES

35

photo the chain is fixed to the beam by metal bolts. PA:

Other than that is there any difference?

N:

No. Your Honor, I now offered Plaintiffs #6 for identification into evidence as demonstrative evidence.

PA:

How would you expect the Defense attorney to react (a) if the photo was initially made available in discovery (b) when Plaintiffs counsel first had the exhibit marked and shown to Defense counsel (c) when you as Plaintiffs counsel offered the photo into evidence? (2) How would you expect the judge to react to your attempt to get the photo in front of the jury? (3) Do you think the proposed examination of the Neighbor is an appropriate evidentiary strategy for an ethical attorney? Why or why not?

(1)

36

SKILLS & VALUES: EVIDENCE

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

CH. 5

REMEDIAL MEASURES

37

SELF-STUDY We have developed separate strategies to deal with an FRE 407 objection against (1) our offer of evidence regarding the "experimentation" (2) our offer of evidence regarding the ultimate installation. 1.

Our offer of evidence regarding the "experimentation". Here we have a legitimate legal argument under the terms of FRE 407: 'Your Honor, FRE 407 is limited to precluding the admission of subsequent measures, which is defined as something that and here I quote directly from FRE 407 - "if taken previously would have made the injury or harm less likely to occur". This testing and experimentation plainly does not qualify under this definition. No matter how many different types of bolts and fasteners they tested, the eventual harm to the plaintiff, Kenny Hunter, would have been no 'less likely to occur' than if they'd never done any of the testing."

2.

[Of course, defense counsel will counter that far from being general testing, what the Plaintiff is calling experimentation was an essential first step in the remedial measure of securely fixing the swing to the frame. After all, once the best fastener was determined, the swing was permanently reinstalled using that fastening system with in 48 hours.] Our offering of evidence regarding the ultimate installation a.

Cross-examination - it is unlikely that we could make a credible argument that this evidence is being brought in for any but the forbidden purpose of inferring "fault" on defendant's part. Nevertheless you can "shadow" the repair on cross when exploring breach of duty so long as we don't specifically refer to the actual installation. For example, in cross-examination of the chief of the work crew you could ask: You wanted to make those swings safe? You knew little children would use the swings? You didn't want them to get hurt? You knew that if the chain attached to the wooden frame came lose, the swing would plummet to the ground? And if that happened a child on that swing could be seriously hurt?

38

SKILLS & VALUES: EVIDENCE

3.

So you chose to attach the chain to the wooden frame using nails which you then bent? There are other means of fastening you could have used? You could have used metal bolts?* These bolts would have been bolted through wooden beam at the top of the frame? These bolts are stronger than bent nails?** And these bolts are available in local hardware stores? They cost less that $3.00 a pair? In fact, you could have used special high test bolts that can hold unusually large stresses, isn't that true? But you know you can't purchase the really safe bolts at an ordinary hardware store, right? You'd have to go to the specialty supply and pay more for the really safe nuts and bolts? You have a regular park maintenance crew? They work full-time? Many of them have the skill to install the swings using metal bolts? But you chose not to use metal bolts? Ethical issue - bringing photo in under guise of authentication: Defense counsel is likely to question the photo of the subsequent repairs when it is provided in discovery, and all but certain to notice when it is marked, and certainly when offered. Defense counsel will immediately ask to approach the bench and request an explanation from Plaintiff's counsel why he or she is trying present the photo. Unless there literally are no available photos of the swingset prior to the repair (and maybe even then) the Judge will perceive Plaintiff's counsel as being sneaky, untrustworthy, and willing to try to insert otherwise in admissible evidence into the proceeding. ABA Model Rules of Professional Conduct 3.4(a)(c) also imply that a lawyer shall not offer evidence the lawyer knows is inadmissible and prejudicial.

* If witness foolishly denies this, they have "contested" "feasibility" (FRE 407), and the Judge will let you bring in your evidence of the installation.

··If witness foolishly denies this, they have "contested" "feasibility" (FRE 407), and the Judge will let you bring in your evidence of the installation.

Chapter 6 ATTORNEY-CLIENT PRIVILEGE INTRODUCTION This chapter focuses on the attorney-client privilege. In dealing with privilege, an advocate knows that they are entering an area of extreme risks or rewards. The privilege can keep highly relevant, even devastating evidence ("I was the one who shot her") from the fact finder. Pierce through the privilege and the proverbial "smoking gun" may fall in your lap. Advocates have checklists of how to get around, a privilege claim, and where a claim of privilege may be vulnerable: • the court should not recognize privilege (claim of novel privileges) • the party claiming the privilege failed to meet one or more of the requirements for the privilege (e.g., didn't see attorney "for legal advice") • there is an exception to the privilege (e.g., crime-fraud and the attorney-client privilege) • the privilege has been waived (intentional, partial disclosure, non-essential third party, eavesdropper, etc.) • the party asserting is not the holder of the privilege, nor are they representing the holder. • the privilege is "qualified" (e.g., the portion ofthe work-product privilege not involving attorney mental impressions, is considered a qualified privilege); with a qualified privilege the evidence is privileged, but because this is a qualified privilege, the other side may obtain the information with a sufficient showing of need. Progressive criminology and privilege may come into conflict. The success of the Drug Court model has led to the creation of other court supervised treatment programs designed to address mental health, domestic violence, theft, and other issues. With this reconception of the criminal punitive model however, comes an erosion of the defendant's privileges. At the center of the Drug Court model is the Treatment Team. The Treatment Team designs the treatment for, e.g., a user of 39

40

SKILLS & VALUES: EVIDENCE

methamphetamine, which, may range from a few educational classes for a youth just beginning to experiment with drugs, through outpatient group counseling, a sober living home, all the way to years in a residential hard-core treatment facility for the defendant with a history of drug abuse covering decades. Generally, the Treatment Team includes the prosecutor, defense counsel, probation officer, drug counselor, and sometimes a physician or psychiatrist. Clients participating in a treatment court program are required to give up their doctor-patient, and other similar privileges so that the team can be informed of the defendant's progress in treatment. With the defendant's attorney on the treatment team, the attorneyclient privilege is also often in question.

CH.6

ATIORNEY-CLIENT PRIVILEGE

41

EVIDENCE TOPIC: Attorney-Client Privilege [FRE 501] SKILLS INVOLVED: Developing argument opposing a claim of privilege; ethical responsibilities in discovery; waiver of attorney-client privilege by accidentally providing confidential information in document production during discovery. ESTIMATED TIME FOR COMPLETION:

30 minutes

LEVEL OF DIFFICULTY {t TO 5):

··~ ROLE IN EXERCISE: You are the attorney for Plaintiff, Kenny Hunter, in the "Swingset Case" [See summary of factual background, on page viii.] THE EXERCISE

Plaintiffs attorney. You were going through the discovery provided by the City when you found a letter you'd never seen before stuck together with another document. The letter was dated three days after Kenny was hurt.

42

SKILLS & VALUES: EVIDENCE

THE LETTER Ms. Kathelene Ozama, Esq. City Attorney State Bldg., #163 927 Crawford Ave. S. Santa Magnolia, Wasa Dear Ms. Ozama:

00624

I am writing for advice. I work for the Park Department and was the head of the Park Maintenance Crew that worked on the swing that collapsed, hurting that little boy. We we're working in Mayfield Park (where the accident happened) early that morning. We discovered that the bolts holding the chains to the wooden frame on that particular swing were cracked but we didn't have any new bolts with us. So, we took down the swing; but then we didn't know where to put the chain and seat, so we nailed it back on and wrapped it around the top beam so no one could use it, until we put in new bolts. Someone obviously climbed up the wooden frame and unwrapped the swing after we left. We should have gone right back and gotten the bolts, and fixed it. At least we should have left some kind of "do not use" sign. But we didn't. We decided to come back the next morning and left to do other things. The accident happened later that afternoon. So, that gets to the advice I'm seeking. Do you think I need to get my own attorney? If so, can you suggest anyone? Thank you for your consideration. Sincerely, Alex Morelli Plaintiffs Attorney: (1)

You anticipate the City's attorney will claim that this document is covered by the attorney-client privilege. Other than "waiver," is there any plausible argument you can make that the privilege does not apply here? Give it a try. Write down the points you would make in arguing that the attorney-client privilege does not apply to the letter.

(2)

You are certain that this letter was given to you by accident. What are your ethical and/ or legal obligations now? If the City asserts attorney-client privilege and you counter that they have "waived" the privilege, against what doctrinal framework will the court assess your claim?

CH.6

ATTORNEY-CLIENT PRIVILEGE

43

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

44

SKILLS & VALUES: EVIDENCE

SELF-STUDY (1)

Contesting assertion of attorney-client privilege - The attorney-client privilege applies to (1) communications (2) made to an attorney (or to someone the person communicating reasonably believes to be an attorney) (3) for purposes of obtaining legal advice (4) intending the communication to be confidential. Plaintiffs argument that the privilege does not apply to the letter would focus on the third and fourth requirements: a.

Mr. Morelli was not seeking legal advice "Should I get my own attorney?" is not a question that only an attorney is permitted to answer. Lay people often tell each other that they should seek the advice of any attorney, and may even recommend a particular attorney. No one considers this to be the unlicensed practice of law; far from it, this is merely directing the person to someone legally entitled to give legal advice. [Of course, the City may counter: This is nothing like a neighbor asking another whether they intuitively think the situation is one beyond a layperson's ability to handle. Here, Mr. Morelli was asking for legal evaluation. Implicitly, he was asking (1) whether he could be sued as an individual (2) whether, if the City is sued, the City might cross-claim against him, and (3) whether the City's counsel would also represent him, if he was individually sued and the City did not cross-claim.]

b. Mr. Morelli could not have intended the communication to be confidential Morelli was an employee of the City. He knew he was communicating with the attorney for the City. And he knew that her client, the City, was likely to be a defendant in a lawsuit upon which his information was highly pertinent. On what possible basis could he believe that Ms. Ozama would not share this information with a segment of her client-base, the Park's Department? Rather, sending this information under these circumstances to the very person who was the attorney for all city departments (including Parks) insured that the information would be subject to being shared with, and not be kept from, pertinent officers and employees of the City.

ATIORNEY-CUENT PRIVILEGE

CH.6

(2)

45

Handling arguably privileged information inadvertently provided in discovery to the opposing partya.

Responsibility when accidentally provided with a privileged document in discovery In the era of electronic discovery, this is an issue of great magnitude because volumes of previously unobtainable information (emails, databases) are now available with mere keystrokes, and can affect the outcome of major litigation. New Fed. R. Civ. Pro. 26(b)(5) sets up a procedure for asserting privileged once a party is on notice that they have inadvertently provided privileged document(s) in discovery; but it fails to discuss any responsibility on the receiving party to give such notice. On the other hand, the ABA's Model Rule of Professional Conduct 4.4(b) requires an attorney who receives privileged documents, in circumstances they "know or reasonably should know" was a mistake, to notify the sender.

b.

Doctrinal framework for resolving issues of waiver This was somewhat of a trick question since currently there is no clear standard; the federal courts have been using one of three different standards - "The Strict Approach" where, if you give the document in discovery, no matter what the circumstances and reasons for the mistake you've waived the attorney-client privilege, See, e.g., In re Sealed Case, 877 F. 2d. 976, 980-81 (D. C. Cir. 1989); "The Middle Approach", where waiver may or may not result depending on the facts and circumstances of the case (e.g., reasonable efforts to avoid disclosure, number of inadvertent disclosures), See, e.g., Alldread v. City of Grenada, 988 F. 2d 1425, 1435 (5th Cir. 1993); and "The Lenient Approach" where, if it's a mistake, there is no waiver, See, e.g., Lazar v. Mauney, 192 F.R.D. 324,339 (N.D. Ga. 2000). [However, proposed FRE 502 is on the horizon, and is specifically directed at the issue of the attorney-client privilege in the context of massive (generally electronic) document production. If adopted, that rule will address our issue, barring waiver in the event of inadvertant, good faith release of otherwise attorneyclient privileged information.]

Chapter 7 PRIOR CONVICTIONS INTRODUCTION This chapter focuses on the use of prior criminal convictions as a method of witness impeachment. A jury trial is an adversarial proceeding. Each side tries to persuade the jury to adopt their respective view or interpretation of the facts. With witnesses on each side of an issue, often the battle becomes "who do you believe?" To aid the jury in making such a difficult determination the judge will instruct the jury as to what factors they may or should consider in assessing and weighing the credibility of each witness. One of those factors is criminal convictions of a witness. Both sides understand that knowing about a conviction is likely to lead jurors to the implicit character inference (an exception to the rule against "propensity" evidence) about the witness's character for truthfulness which underlies the rule. But both sides also understand that, depending both upon the nature of the conviction and the presented persona of the witness (i.e., a businessman, pillar of the community versus career criminal), the very existence of the conviction can cause the jury to see the witness in a different light, i.e., lead the jury to alter their "story" about the witness they have watched testify in a formal trial setting. For a criminal defendant, however, the stakes can be very high when it comes to the admissibility of prior convictions. Hearing about a testifying defendant's criminal convictions, a juror can easily go beyond using the information for credibility and instead hear in defendant's prior record the story of "a criminal," and thus someone not entitled to the full weight of reasonable doubt. Worse, if the prior conviction(s) also brand the defendant as "dangerous," jurors may become further detached from proof of guilt in the present case, instead focusing on the need to get this dangerous person off the streets. Because of this, the Judge's decision as to admission of defendant's prior convictions will have an impact on the decision whether the defendant will take the stand. Defense attorneys, therefore, will generally seek to have the question of admissibility of defendant's convictions resolved in limine

47

48

SKILLS & VALUES: EVIDENCE

so that they can make decisions about whether they need to voir dire the jury about the convictions, and assess the decision whether defendant will take the stand (of which the admissibility of prior convictions is one factor.)

CH. 7

49

PRIOR CONVICTIONS

EVIDENCE TOPIC: Impeachment with criminal convictions [FRE 6og] SKILLS INVOLVED: Mastering evidence doctrine; planning for use of doctrine in a case; assessing doctrine within facts of case; deriving case information from records. ESTIMATED TIME FOR COMPLETION:

II 30 minutes LEVEL OF DIFFICULTY (1 TO 5):

••

ROLE IN EXERCISE: You are prosecutor in the "Robbery Case" [See factual summary, on page vii.] THE EXERCISE

Prosecutor. Defendant, Ed Sam has filed a Notice of Alibi, listing two witnesses: Nate Leste and Joaquin Moore. You have pulled up records of criminal convictions for Ed Sam and his two alibi witnesses. RAP SHEET FOR ED SAM

drunk in public

misd

Y-

assault

misd

Y-6

petty-theft #1

misd

Y-

petty-theft #2

misd

Y-7

grand theft auto

felony

Y-6

10

11

Guv.) Guv.)

50

SKILLS & VALUES: EVIDENCE

RAP SHEET FOR Nate leste (age 31) Driving while intoxicated

misd

y- 12

theft by false pretenses

misd

Y-6

possess. of marijuana

misd

Y- 14 Guv.)

possess. of drug paraphernalia

misd

Y- 14 Guv.)

possess. of marijuana for sale

misd

Y-4

RAP SHEET FOR Joaquin Moore (age 25) Embezzlement

felony

Y-4

Perjury

felony

Y- 8 Guv.)

Of course you'd like to use these criminal convictions to impeach the defendant and his two alibi witnesses if they take the stand; but the first step in achieving this goal is to fully understand how FRE 609 applies to and/ or raises issues as to each of these convictions. (1) For each rap sheet, make a separate list dividing the convictions into three categories: (1) those you are confident will be admitted for impeachment (2) those which will not be admitted (3) those you may be able to get in. Then write a sentence explaining your selection. (2) Prosecutor. While you've been focusing on impeachment of defense witnesses, a problem with one of your eye-witnesses from the store has arisen. This person was fired from a previous job when the employer found out that your witness allegedly used a totally false resume when she applied. You think defense counsel knows, and will try to bring the information in on cross-examination of the witness under FRE 6o8(b). When discussing the evidence with the witness is there any reason to tell her that under FRE 6o8(b) the defense attorney will have to accept her answer on whether she gave her employer a false resume, and that the defense will not be permitted to provide any extrinsic evidence on the issue?

CH. 7

PRIOR CONVICTIONS

51

DO NOT PROCEED TO THE NEXT PAGE UNTil YOU HAVE COMPlETED THE EXERCISE

52

SKILLS & VALUES: EVIDENCE

SELF-STUDY In applying FRE 609, we ask three questions: (1)

Is it a crime of "dishonesty" (which in federal court appears to require that deception, false statement, etc. be an element of the crime or factually necessary to fulfill an element in the particular charge, as contrasted with stealth as in shoplifting)? If it is a crime of dishonesty, the Judge "shall" admit it. FRE 609 (a)(2). (2) If it is not a crime of "dishonesty", is it a felony or misdemeanor? If it's a misdemeanor, it will not qualify under FRE 609(a)(1). A felony may qualify if: (A) the witness is other than the accused, and the Judge finds it services of FRE 403 balancing (B) the witness is a criminal accused, and the prosecutor carries the heavy burden of convincing the Judge it is "more probative than prejudicial." FRE 609(a)(1). (3) Was it more than 10 years since the conviction or release from custody, whichever is latest? Even if the conviction is a crime of "dishonesty", or felony surviving the appropriate balance, if the ten year rule applies (FRE 609 (b)) the conviction will generally be excluded [unless the offering party can convince the court that the evidence" is substantially more probative than prejudicial" - in other words, the literal reverse of the burden under FRE 403]. (1) Applying our questions to the three rap sheets, we arrived at the following analysis: RAP SHEET FOR ED SAM: 1.

Court clearly will let in

2. Court won't let in

none drunk in public (misd./not crime of dishonesty) assault (misd./not crime of dishonesty) petty-theft #1 (misd./not crime of dishonesty in federal court; more than 10 years; juvenile convictions of accused inadmissible. FRE 609 (d).) petty-theft #2 (misd./not crime of dishonesty in federal court)

CH. 7

PRIOR CONVICTIONS

3. Court might let in

53

grand theft auto (not crime of dishonesty, but felony - prosecutor will argue that defendant's credibility central to testimony, and that this six year old felony for a non-violent crime is "more probative than prejudicial.")

RAP SHEET FOR Nate leste: 1.

Court clearly will let in:

theft by false pretenses (crime of dishonesty)

2.

Court won't let in:

driving while intoxicated (misd.jnot crime of dishonesty; more than 10 years)

3. Court may let in:

possession of marijuana for sale (not crime of dishonesty but felony - credibility of alibi witness important; defendant carries heavy FRE 403 burden to keep it out. So, prosecutor likely to get in.)

RAP SHEET FOR Joaquin Moore: 1.

Court will let in:

embezzlement (crime of dishonesty)

2.

Court won't let in:

none

3. Court may let in:

perjury (crime of dishonesty; juvenile conviction, but perjury extremely probative of witness credibility and the witness is not the accused, so under FRE 609 (d) the Judge might be convinced that "admission in evidence is necessary to a fair determination of guilt or innocence.")

(2) What should/shouldn't you tell your witness about FRE 6o8(b) doctrine? Initially, one should note that you are dealing with a prosecution witness, not representing a criminal defendant. As to this latter situation, Gerald L. Shargel, Practitioner - in residence at Brooklyn Law School, has written:

54

SKILLS & VALUES: EVIDENCE

Regardless of whether I tell my client about Rule 6o8(b) before or after asking about his personal background, I do not believe this information will open the floodgates to a wave of lies. I think I can deter my client from lying by warning him about the risks that lying entails. I am a strong believer in the power of negative persuasion. Along these lines, Rosanne Barr once suggested the following diet: "Eat anything you want, but do it naked in front of a mirror." My warning speech is like that mirror; it shows an unpalatable version of reality. I begin by emphasizing that perjury is illegal, immoral, and-worst of all to a defendant facing possible jail time-counterproductive. I would stress that prosecutors are adept at uncovering lies on cross-examination, and, if the prosecutor catches a defendant in a lie, no matter how small, the jury and the judge will have trouble believing the defendant about anything else. I would caution my client that, as Hazard points out, juries and judges are "notoriously unsympathetic to witnesses who lie on the stand" and that this "lack of sympathy readily translates into a harsh verdict." Focusing on Rule 6o8(b), I would warn my client that he would be gambling if he relies on the Rule to conceal lies about collateral bad acts. Although 6o8(b) bars extrinsic evidence of bad acts insofar as those acts demonstrate "character for truthfulness," the same evidence often comes in for other purposes. Courts can admit collateral bad acts to establish motive, modus operandi, intent, etc. Also, if my client makes a sweeping denial of illicit activity during his direct testimony, the court can admit extrinsic evidence of collateral bad acts to impeach him "by contradiction" .... In sum, I believe that I have the ability, as most criminal defense attorneys do, to deter my client from relying on Rule 6o8(b) to lie. Although it is always possible that my client would disregard my advice and lie anyway, I do not believe that this remote possibility make it wrong to tell a client about Rule 6o8(b). As a zealous advocate, I have a duty to prepare my client for trial and to enhance his decision-making power. Again, my role as a criminal defense attorney is to protect my client, not to ferret out the truth.

CH. 7

PRIOR CONVICTIONS

55

Gerald L. Shargel, Federal Evidence Rule 6o8(b): Gateway To the Minefield of Witness Preparation, 76 FORDHAM L. REv. 1263, 1277 1278 (2007) (from "symposium Evidence and Ethics"). But with a mere witness as in this case, 6th Amendment duties do not arise. If the witness tells you the allegation about the resume is untrue, then telling them that under FRE 6o8(b) the matter will end with their denial seems fine; it will help assure them that this no doubt very unpleasant episode in their life will not be further explored in a public trial once they say "no." On the other hand, if they acknowledge that they created a false resume, what could justify telling them about FRE 6o8(b), other than to make them think about lying, which you would then have to remedy in court ("including, if necessary, disclosure to the tribunal;" Model R. Prof. Conduct 3.3(a)(3))?

Chapter 8 IMPEACHMENT WITH INCONSISTENT STATEMENT AND OMISSION FROM STATEMENT INTRODUCTION This chapter deals with prior inconsistent written statements (FRE 613) and omissions from statements. In both criminal and civil cases

impeachment with a prior inconsistent statement (assuming that is about something significant) can be one of the most effective tools in the arsenal of a good cross-examiner to destroy the credibility of a witness for the opposing side. The trap is laid on cross-examination by nailing the witness into his present testimony as the absolute, underoath truth of his present testimony. Then, all the avenues of reconciliation of the two inconsistent statements are systematically closed by careful, well planned questioning. Finally, the trap is sprung when the cross-examiner confronts the witness with the prior inconsistent statement. By now the witness has testified that he always tells the truth, but suddenly it is quite apparent to the jury that both statements can't be the truth. Ultimately, the witness may be forced to admit that one of his statements is untrue and destruction of his credibility is complete. (Impeachment by material omissions is analogous. If a school disciplinary report contains instances of theft and cheating, but on the day of the hearing a counselor adds "threatened a teacher that would go home, get a gun, and kill her," one may justify wonder how this incident could have happened and yet not been the report.) A good attorney can magnify the impact of a false statement in the sanctity of the courtroom, even though the matter which is the subject of the inconsistency may not be central to the case. The destruction of the credibility of the witness may well cause the jury to question or even disregard the rest of the testimony of that witness. Thus, it is not uncommon for the drama of impeachment with a prior inconsistent statement to affect the outcome of a trial, particularly if the impeached witness is a critical to one party. At some level, every trial attorney is a perlormer. The actor enjoys the spotlight, seeks the competition, and relishes the real life drama of trial. It is this kind of trial situation that a dedicated trial attorney 57

58

SKILLS & VALUES: EVIDENCE

loves. A trial lawyer lives for the gasp that erupts from the jury box and gallery when the witness is caught telling two contradictory stories, even though these pure movie moments are few and far between. Of course, competent opposing counsel will be aware of the inconsistency and will have the witness prepared to explain. You can't put your hand over the witness's mouth and stop them from trying to justify the inconsistency. You have brought out the inconsistency; the witness has offered an explanation. If you set up your impeachment with all the reasons the witness would have tried to be truthful and accurate when he or she made the prior inconsistent statement, you will be in a good position to argue in closing that not only did the witness speak out of both sides of his mouth, he compounded this by trying to give the jury a false explanation for the inconsistency.

CH. 8

IMPEACHMENT: INCONSISTENT STATEMENTS/OMISSIONS

59

EVIDENCE TOPIC: Impeachment with a Document [FRE 613; FRE 401] SKILLS INVOLVED: Culling a document for impeachment material; picking up inconsistencies with, or omission from, a statement while "listening" to direct examination; planning impeachment with a prior statement; conducting impeachment with a document - both prior inconsistent statements and omissions. ESTIMATED TIME FOR COMPLETION:

Ill 45 minutes

LEVEL OF DIFFICULTY (1 TO 5):

··~ ROLE IN EXERCISE: You are defense counsel for Ed Sam in the "Robbery Case" [See factual summary, on page vii.] THE EXERCISE

Defense Counsel. Prior to trial, you carefully reviewed the supplemental police report of Officer Grace Aebersold, the officer who arrested your client.

60

SKILLS & VALUES: EVIDENCE

NARRATIVE PORTION OF SUPPLEMENTAL REPORT

NARRATIVE: Reporting Officer [RO] went to Harrison Community Center with Officer Tyler to arrest robbery suspect, Ed Sam. A confidential informant had called and told RO that Sam was currently playing basketball at the Center. Upon arrival, officers located gym and approached individual who identified himself as Ed Sam. Suspect was placed under arrest without incident. RO then read suspect his MIRANDA warnings from a card issued by the Department, and then asked suspect if he had a locker, to which he replied he did, and took us to his locker. Suspect thereupon consented to a search of his locker, but neither a search of defendant or the locker revealed anything of evidentiary value. Suspect was then transported to the stationfor booking. You are now at trial and Officer Aebersold is on the stand on directexamination.

OFFICER AEBERSOLD DIRECT EXAM Prosecutor [Pr]: Please state your name. Witness [W]:

Grace Charlene Aebersold.

[Pr]:

What is your occupation?

[W]:

I'm a police officer for the Santa Magnolia Police Department

[Pr]:

How long have you been a police officer?

[W]:

Six years ... All with the Santa Magnolia Police Department

[Pr]:

What has been your training?

[W]:

Well, of course, the Academy. I've done separate workshops on crime scene investigation, interrogation methods to avoid false confessions, and dealing with gangs. I've gone to regular continuing education programs about recent developments in law enforcement.

[Pr]:

Now, Officer Aebersold, do you recall where you were at approximately 11:15 a.m., Saturday October 16th of last year?

[W]:

Yes. I was at the Harrison Community Center.

CH. 8

[Pr]: [W]: [Pr]: [W]:

[Pr]: [W]: [Pr]: [W]:

[Pr]: [W]: [Pr]: [W]:

[Pr]: [W]:

[Pr]:

Judge: [Pr]:

[Pr]: [W]:

[Pr]: [W]:

IMPEACHMENT: INCONSISTENT STATEMENTS/OMISSIONS

61

Was anyone with you? My partner, Officer Tyler. Why were you there? We had information that the defendant, Mr. Sam, was playing basketball at the Center, and we went there to arrest him. Were you able to locate the defendant? Yes. He was sitting on the side line of one of the courts, I guess waiting to get into a game. What did you do then? We approached the subject, identified ourselves as police officers, and then asked him if he was Ed Sam - And he said he was. What happened then? We placed the defendant under arrest. Did anything unusual happen at this time? I wouldn't say really unusual - The defendant just resisted briefly, but my partner and I quickly subdued him, and there were no other problems. After you got Mr. Sam under control, what did you do? I read him his Miranda warnings off a card I carry. May I approach the witness, Your Honor? You may approach. Officer, I'm showing you what's been marked as State's #5 for Identification. Do you recognize what that is? That's the card that I use to read Miranda warnings .... It's issued by the Department. [Whereupon State's #5 is offered and admitted, without objection, into evidence.] Now, did Mr. Sam indicate that he understood his rights? Yes. He said he understood, and that he was willing to talk. What happened then? I asked him if he had a locker in the gym, and when he said "yes," I asked if he would take us to it.

62

[Pr]: [W]: [Pr]: [W]: [Pr]: [W]:

[Pr]: [W]:

[Pr]:

SKILLS & VALUES: EVIDENCE

Did he? Yes. He took us to the locker, consented to search, and opened it for us. Did you search the locker? Yes. But we didn't find anything of evidentiary value in the locker or on his person. What happened then? Well, I was starting to walk him to our car- so we could take him down to the station - when he just blurted out "When will I ever learn? Why can't I stop this crazy, self-destructive behavior? I had it all; I didn't need the money, what's wrong with me?" What happened then? He didn't say anymore. So we placed him in our patrol car and transported him downtown for booking. Thank you officer. No further questions.

Defense attorney. You are about to cross-examine officer Aebersold. For purpose of this assignment, using only the Officer's police report, list the points you would bring out from his report to impeach Officer Aebersold.

CH. 8

IMPEACHMENT: INCONSISTENT STATEMENTS/OMISSIONS

63

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

64

SKILLS & VALUES: EVIDENCE

SELF-STUDY

Using the Supplemental Report which is Officer Aebersold's prior written statement, we would focus on the following two points: • Prior Inconsistent Statement [FRE 613] - In his testimony, Aebersold testifies about your client "briefly resisting" and needing to be "subdued"; but in the Report, your client was arrested "without incident." • Omission [FRE 401/cf, FRE 613]. Nowhere in the report is there any mention of the inculpatory statements by defendant the officer now testifies about ("when will I ever learn? ... I didn't need the money ... " etc.) The logic behind pointing out that what the witness has testified to is not in his statement is (1) the statement would contain all important information (2) the information (here, a virtual confession - "when will I ever learn? ... ") is of obvious importance (3) thus, if the information had arisen at the time the statement was written it would be in the statement (4) the information about this alleged statement is not in the prior statement (5) therefore, this defendant did not make the statements testified to by officer Aebersold on Direct. For a demonstration showing the impeachment of Officer Aebersold using both inconsistent statements and omissions from her police report, view the video that can be found in the LexisNexis Web Course that was created for this book. After viewing the video you may wish to print out the annotated transcript of the examination.

Chapter 9 EXPERT WITNESS INTRODUCTION This chapter focuses upon attacking the qualifications of an expert witness in voir dire (FRE 702). It would be the rare case indeed where an attorney would not challenge the methodology or the qualifications of an opposing counsel's expert by a Motion In Limine, outside the presence of the jury. While some of goals and objectives in cross-examining an expert in a "pre-testimony" setting may be obvious, others may not be.* It is common for an expert witness to pontificate beyond the scope of their real expertise. Voir dire can pin down the exact nature of the witness's expertise so the attorney has a clear basis to object should that expert attempt to testify "beyond the scope" of her expertise. Thus, even if the judge rules that the subject matter is such that the proposed expert testimony would be helpful to the factfinder and that opposing counsel's expert is qualified to testify about the subject matter, you can still be effective in limiting the scope of the expert's testimony in front of the jury. Although you may lose the battle over admissibility of the expert testimony in your In Limine motion, you can still demonstrate to the judge that the some of the specific subject matter is beyond the qualifications of this particular expert or that there is insufficient scientific basis for the full range of what the expert would like to say in front of the jury. If you are successful in limiting the scope of an expert's testimony, the expert will be instructed by the judge not to testify about particular subject matter. A second obvious objective might also be to demonstrate through your voir dire of the witness that he or she does not possess sufficient special knowledge, education, training, or experience to qualify as an expert in the field or on the topic about which the witness purports to be an expert. Again, the goal is prevent presentation of the evidence to the jury.

* For example, motions to exclude the expert's testimony based on methodological reliability (FRE 702(1)(2)(3)) are generally raised in limine.

65

66

SKILLS & VALUES: EVIDENCE

It is always an advantage to be able to cross-examine a witness out of the presence of the jury; for you can do a number of things that you would not risk if the jury were present. One particularly fruitful area of In Limine cross-examination is the extent of the expert's knowledge. One of the major tenets of normal cross-examination in any case is "never ask a witness a question to which you (the attorney) don't know the answer." The reason is obvious. You use cross-examination to build your case or tear down the opposition's case not to go exploring into areas wherein the witness might damage your case. In Limine cross-examination presents an exception to that rule. You want to plumb the depths and find the fringes of an expert's knowledge. Once you find out where the witness's knowledge ends then you know where to go when you cross-examine that witness in front of the jury. You ask the expert all the questions you know he can't answer so that he must respond "I don't know" to your questions, thereby casting doubt on his credibility as an expert in front of the jury. Another objective of In Limine cross-examination is to determine an expert's strengths and weaknesses so that you can exploit them during the real cross-examination. How adept is the expert at handling cross-examination? You will need to gauge the ego strength of the witness. Can you intimidate or get the witness to bend to your will or is the witness so overconfident that he can be encouraged to puff-up credentials or testimony and thereby trap himself in front of the jury? What happens when you question the expert in areas beyond his expertise? Are you able to needle and antagonize the witness so he tries to argue and fight with you while on the witness stand? Can you demonstrate the expert's bias? Be aware, however, that some courts will conduct voir dire in front of the jury on the rationale that if the expert is not qualified, the jury will hear nothing other than his background. If the expert is found qualified, on the other hand, the voir dire merely replicates areas that otherwise would be gone into on cross. If the voir dire is done in open court, counsel would not pursue an open ended, deposition-like inquiry into areas that might produce damaging testimony in front of the jury. Rarely is there a witness from which you cannot elicit helpful testimony, and the expert witness often offers a bounty of evidence which can assist you in proving your case. A good cross-examiner regularly makes the opposing expert his or her "own witness." And, one place to find out how much information the expert possesses that can help you win your case is in a pre-trail motion or voir dire, out of the presence of the jury before the witness testifies in open court.

CH.9

EXPERT WITNESS

67

EVIDENCE TOPIC: Expert Testimony [FRE 702] SKILLS INVOLVED: Qualifying an expert; planning voir dire of opposing expert by analyzing curriculum vitae; strategic perspectives on voir dire. ESTIMATED TIME FOR COMPLETION:

I II I 6o minutes LEVEL OF DIFFICULTY (1 TO 5):

••••

ROLE IN EXERCISE: You are the attorney for the City in the "Swingset Case." [See summary of factual background, on page viii.] THE EXERCISE

City Attorney. In discovery, Plaintiff sought all e-mail communications between Ralph Morton, head of the City's Parks Department, and a former employee, Ms. Ester Steinman, regarding Ms. Steinman's allegations of misconduct regarding maintenance of the public parks and park equipment. The Plaintiff's discovery request apparently was based upon a section of Ms. Steinman's deposition* in her unrelated suit against the City for retaliatory dismissal.

* This deposition also has been the subject of Chapter 17 [Authentication [FRE 901] and Best Evidence [FRE 1001 et seq.]; and Chapter 16 [Former Testimony (FRE 804 (b)(1))].

68

SKILLS & VALUES: EVIDENCE

DEPOSITION EXCERPT FROM UNRELATED RETALIATORY FIRING LAWSUIT Plaintiffs Attorney [PA]: Ms. Steinman, how was your complaint conveyed to the head of the Park's Department? Plaintiff [P]:

I sent it to Mr. Morton by e-mail.

PA:

What basically did you tell him in your e-mail?

P:

I wrote that the crew responsible for

PA:

repairing and maintaining public playgrounds was not at all doing their job. They were rushing through, doing shoddy quick fixes - duct tape for repairs you couldn't see, nails instead of bolts or fasteners stuff like that. Can you tell us why they would do that? Sure. By doing that, they finished by noon everyday. Then they'd all go to one of their houses ... I think one with a swimming pool. Then they'd swim and play cards for the rest of the afternoon, and then rush back to the service lot at the end of their shift.

P:

PA: P:

PA: P:

How do you know this? I've heard them laughing, talking about it. Everyone in the Department knows, even in accounting where I work. I mean, these guys come in at the end of their shift, and its 95° out with go% humidity. And they're not just dry, you can tell they've showered ... sometimes they've even changed shirts. Did you ever hear back about your e-mail? Not in person or by phone, but I got an email.

PA:

Okay, Ms. Steinman. Who did it appear to come from?

P:

Mr. Morton.

CH.9

PA:

P: PA: P:

EXPERT WITNESS

69

Why do you say that? It had his e-mail address at the top I recognized it. And what did it say? That he would investigate my claims about misconduct in the Park Work Crew - Put the Department Assistant Director in charge. And he thanked me- Big Thanks! They fired me!

In spite of their best efforts, however, your clients at the Parks Department could not locate any of these supposed e-mails (which made you think they never existed). When you responded that you could not find any such documents in response to Plaintiff's Fed. R. Civ. Pro. 34 discovery request, Plaintiffs counsel went into court and obtained and order for a so-called "computer forensics" expert to inspect the hard drive on Ralph Morton's computer. Subsequently, Plaintiffs expert, Jaspreta Abdul, filled a report stating that she had recovered fragments of e-mails consistent with ones Ms. Steinman testified about, and further that in her opinion someone had deliberately tried to erase these emails from the hard drive. If believed, Plaintiffs expert puts your clients in serious "consciousness of guilt land." Imagine Plaintiff's expert testifies about her qualifications [FRE 702] as follows: TRANSCRIPT OF QUALIFICATION OF PLAINTIFF'S COMPUTER FORENSICS EXPERT Plaintiffs Attorney [PA]: Please state your name. Witness [W]: J aspreta Abdul PA: Could you tell the jury why you're here? I'm here to testify about the contents of a W: computer hard drive I was asked to analyze - you know, that big internal disk in your computer where all your files and information are stored. PA: Ms. Abdul, what is your current occupation? W: I am a founding Partner and Director of Operations of Tech-Forensics, Inc.

70

SKILLS & VALUES: EVIDENCE

PA:

For how long?

W:

14 years What does Tech-Forensics, Inc. do?

PA:

W:

It's a service business providing clients with computer forensics consultants.

PA:

And what does a computer forensic consultant do?

W:

Computer forensic consultants assist clients in navigating and obtaining electronic computer-based - information, primarily in legal cases. The consultant helps to locate, collect, and analyze evidence found on backup tapes, hard-drives, servers, and e-mail systems.

PA:

Does this include retrieving data from a hard drive when people deliberately try to, or accidentally delete information from their computers?

W:

Yes. We've done a number of cases like that.

PA:

And have you been involved in trying to retrieve data under these circumstances? Over 20 times in cases like that. I'm not just a manager at the company; I maintain a caseload of 20-30 cases a year. Now, let's talk about your formal training and education, and experiences - other than your 14 years experience in your business - that allow you to retrieve data like this. Okay.

W:

PA:

W: PA:

W:

Let's start with training ... I received my computer forensic training under the auspices of the U.S. Secret Service Financial Crimes Division, including the National Cryptologic School at the National Security Agency (NSA), to continue to reinforce my experience in the discovery of computer-generated evidence.

CH.9

PA:

W:

PA:

W:

PA: W: PA: W:

PA: W:

PA:

W:

PA: W:

EXPERT WITNESS

71

Now, you've told us about your 14 years at Tech-Forensic, Inc. Could you please tell the jury about your other computer forensics experience? Certainly. For the 10 years before I helped start Tech-Forensics, I was a Special Agent in the United States Secret Service where I was assigned to the Electronic Crime Special Agent Program, which conducted investigations concerning the use of electronic data in crimes. In my experience as a Special Agent, I executed Federal search warrants to perform seizures of numerous computer systems and completed in excess of 8o individual forensic examinations of the contents of those systems. Did any of those 8o examinations involve retrieving data from a hard drive when the computer user attempted to delete the information? At least half 40? At least. Have you made any presentations on computer forensics Yes. Several... Could you tell us about a few? I made a presentation on recovering digital evidence earlier this year to the California Department of Justice, Anti-Trust Division, and made the keynote address on electronic discovery at the annual meeting of the American Trial Lawyers. Finally, have you ever been qualified to speak about computer forensics by a court of law? Yes. How many times? Five ...

72

PA: W:

SKILLS & VALUES: EVIDENCE

Which courts? Three separate times in the cases in the Federal District Courts of California, once in this state, and once in California State Court.

Counsel for the Defendant City. Review the testimony, and the following Curriculum Vitae (assume it is complete and accurate).

CH.9

EXPERT WITNESS

73

CURRICULUM VITAE

Jaspreta F. Abdul 272 Morningdew Place, Apt. 1406 Santa Magnolia, Wasa 0092 7 (006) 274-1297 PROFESSIONAL SKILLS: Computer Forensic Consultant, Computer litigation, and records management specialist who can locate, collect and analyze evidence found on back-up tapes, hard drives, servers, and e-mail systems. Services include discovery consulting, cost containment, expert testimony, and e-risk management services, with extensive expertise in data preservation. WORK HISTORY: 20XX-14 to present: Vice President/Director of Operations Tech-Forensics, Inc. 20XX-24 to 20XX-14: Special Service, United States Secret Service, Sacramento Field Office 20XX:-26 to 20XX-24: Police Officer, Modesto, CA EDUCATION AND TRAINING: [2oXX-26]: Reisberg University, Wasa (graduated with degree in Criminology) [2oXX-24]: United States Treasure Course in "Computer Forensics," Federal Law Enforcement Training Center. [2oXX-24]: United State Secret Service, Special Agent Training Course [20XX-23 to 20XX-2o]: National Security Agency, Operating Networks Security Seminar, National Cryptologic School REPRESENTATIVE PRESENTATIONS: 20XX:-1: "Recovering Digital Evidence," given to California Department of Justice, Anti-Trust Division 20XX-2: "What You Need to Know About Electronic Discovery," given to Dusant County Bar Association members at Annual Meeting. 20XX-3: "Electronic Discovery is Here: Are You on the Train or Left at the Station?"; Keynote Address, given at Annual Conference for the American Trial Lawyers Association.

74

SKILLS & VALUES: EVIDENCE

20XX:-3: "Computer Issues in Practice and Practice Manage-

ment"; workshop for attorneys as part of the California Continuing Legal Education Program. 20XX-4: "Use of Computer Forensics in Investigations," given to "Criminal Investigation" class, Noah Shirley Community College, Santa Magnolia, Wasa. QUALIFIED BY COURTS TO OFFER EXPERT TESTIMONY: Sherman v. First National Trust (Dist. Ct, Calif.)(testified about appropriate protocols for searching opposing party's business database). Mervin v. Chavez (Dist. Ct, Calif.)(Same) Roberts Homecare v. Regence Headhunter's, Inc. (Dist. Ct, Calif.)(Same) Volvo of America v. Shystre (Superior Court of Los Angeles Co, CA.)(Testified about methods for conducting electronic discovery when trade secrets involved). QSM Broadcasting v. Simpson (Superior Court of Dusant County, Wasa)(Same) Now list the points you would bring out in voir dire of Plaintiffs expert to lay the basis for an argument that (1) she does not qualify under FRE 702 (2) and/or to attack her credibility if she is permitted to testify.

CH.9

EXPERT WITNESS

75

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

76

SKILLS & VALUES: EVIDENCE

SELF-STUDY We would raise the following points on voir dire: • Ms. Abdul's only degree is in Criminology; she does not have a degree in Computer Forensics. • Either there are no licensing or certification requirements for being a computer forensics expert, or there are such requirements and Ms. Abdul lacks them (this latter possibility seems to be extremely unlikely). Thus, this appears to be a "field" in which there are no standards as to who is qualified to participate. • Ms. Abdul's last continuing education in her field was 20 years ago. • Either there is no National (or even state or local) association whose members are dedicated to computer forensics, or such association(s) exist and Ms. Abdul is not a member. • Of the five case where she's been qualified as an expert, all involved testifying at hearings to set parameters for electronic discovery; none involved retrieving apparently lost data on hard drives.

Chapter 10 DAUBERT INTRODUCTION This chapter deals with the application of the so-called "Daubert trilogy" to proposed expert testimony espousing a theory of hedonic damages. For over so years the test for the admissibility of novel scientific and technical evidence was whether the proffered testimony was "sufficiently established to have gained general acceptance in the particular field." Frye v. United States 54 App. D.C. 46, 293 F. 1013 (1923). The Federal Rules of Evidence were promulgated in 1975, yet many lawyers and judges continued to employ variations of the Frye test for another 20 years until the Supreme Court clearly announced in Daubert (1993) that Federal Rule 702 superseded Frye. In Daubert, the United States Supreme Court made clear that they were investing lower federal courts, as "gatekeepers," with the power to carefully evaluate the "methodological reliability'' underlying the expert testimony. FRE 702 does not set forth any specific criteria for assessing the reliability and thus the admissibility of proffered scientific or technical evidence. The development of indicia of reliability is left to case law, such as Daubert and its progeny, and the creativity of the individual lawyer. (Thus, in addition to the list of "non-exclusive" factors specifically noted in Daubert- i.e., ability to test for accuracy, known error rate, any peer journaled review, evidence of standards, and "general acceptance" - in determining methodological reliability courts have looked at, e.g., whether any studies were done for the litigation, whether the expert applied the same methodology he or she would use in their work, whether government or private industry employs the methodology/technique, whether insurance pays for it and such.) If a lawyer proffering a unique theory, technique, or piece of evidence can set forth a reasonable set of criteria for testing its reliability, then the door is open to admit potentially any expert testimony that will assist the jury. The principles upon which Daubert is founded, moreover, is not limited to either "novel" (like Frye) or scientific evidence. Subsequent cases (JoinerjKumbo) in the "trilogy" make clear that, as incorporated into FRE 703(1)(2)(3), the "screening"

77

78

SKILLS & VALUES: EVIDENCE

function of Daubert applies to all expert testimony under FRE 702, not just science. In practice, many Federal courts still cling to vestiges of the Frye rule to this day, particularly since Daubert concedes that '"general acceptance' can yet have a bearing on the (reliability) inquiry." To make matters more confusing, many states still strictly adhere to the Frye rule as the test of admissibility for novel scientific and technical expert testimony. While Frye may provide the judge with a more comprehendible standard for evaluating admissibility of cutting edge scientific evidence, FRE 702 favors the innovative lawyer. FRE 702 (1)(2)(3), however, adds expense to the front-end of cases where plaintiffs must line up their experts to combat the defense's inevitable attempt to preclude plaintiff's expert from testifying. On whether FRE 702(1)(2)(3) keeps out more "junk" expertise than good causes of action which cannot afford the required bevy of experts to confront a Daubert challenge, the proverbial jury is still out.

CH. 10

DAUBERT

79

EVIDENCE TOPIC: Daubert (Joiner and Kumbo) [FRE 702(1)(2)(3)]

SKILlS INVOLVED: Assessing the record from a transcript; utilizing a complex body of doctrine to evaluate the record; using record to create legal arguments under complex body of law. ESTIMATED TIME FOR COMPLETION:

1112 52.5 minutes

.....

LEVEL OF DIFFICULTY (1 TO 5):

ROLE IN EXERCISE: You are the City Attorney representing defendants in the "Swingset" Case [See factual summary of case, on page viii.] THE EXERCISE

Attorney for the City. The Plaintiff intends to call a forensic economist, Fielding Jones, Ph.D., who will testify about Kenny's "hedonic damages" - i.e., using the value of a "statistical life" to give a value which purports to represent the "loss of enjoyment of life" Kenny has suffered as result of his injuries. This calculation thus attempts to give a value of life separate and distinct from other losses that may be incurred. Doctor Jones proposes to take his calculation of the value of a "statistical" human life, adjust for life expectancy, and then reduce this total by the percentage of "loss of enjoyment" as calculated by psychiatrist, Dr. Martha Krain who tested Kenny on the "Loss of Pleasure of Life Scale." When all the dust settles, Smith proposes to testify to "hedonic damages" from Kenny's loss of enjoyment of life as nearly 2 million dollars. You filed a motion to bar Dr. Jones from testifying as an expert on the grounds that calculating hedonic damages is not based upon a "reliable methodology." In your motion, you relied upon the "Daubert trilogy" [Daubert v. Merrel Dow Pharmaceuticals, Inc. 509 U.S. 579

80

SKILLS & VALUES: EVIDENCE

(1993); Kumho Tire Co. Ltd. V. Carmichael, 526 U.S. 137 (1999); General Electric Co. v. Joiner, 522 U.S. 136 (1997)] (which can be found in the LexisNexis Web Course that was created for this book)'' and FRE 702 (1)(2)(3). The court set an evidentiary hearing on your motion, at which Dr. Jones testified to his methodology and you cross-examined.

TRANSCRIPT OF HEARING* DIRECT EXAMINATION Q [Plaintiffs attorney]: Do the losses that you have estimated thus

A [Economist]: Q:

A:

Q:

A: Q:

A:

Q: A:

far, [future] wages, fringe benefits, and household services, all net of personal consumption, account for all the losses sustained by ... [Kenny Hunter]? No they do not. What additional losses are there? .. . [Kenny] also suffered the loss of the pleasure of life, itself: the value that he would have expected to obtain from living beyond the value he may have attached to his net financial loss. Is there a name that economists sometimes use to refer to this value? Sometimes this loss is referred to as a loss of hedonic value. What does the word hedonic mean? It came from a Greek root word meaning value or satisfaction or pleasure. - Economists use the word to refer to the nonearnings-based value we get living as opposed to working. People get value or satisfaction or pleasure from living, even though not all moments are pleasurable. But by and large, unless we are suicidal, we regard life as satisfying. Is this non-earnings-based value, or hedonic value, a significant figure? Yes, it is. In this instance it is $1,709,842 ... [calculating the value of a life, reduced by

* This transcript comes from Ayers v. Robinson, 887 F. Supp. 1049, 1051-1054 (N.D., Ill. 1995), quoting Stan Smith and Michael Brookshire, Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorney (1990). Modifications to fit our case appear in brackets

CH. 10

Q: A:

Q: A:

Q:

A: Q: A:

DAUBERT

81

the percent of lost enjoyment Dr. Krain arrived at in her "loss of pleasure scale."] Studies have shown that where estimates of lost earnings are available as well as estimates for the non-earnings value of life, the hedonic value ranges up to several times earnings. Are you saying that economists have made measurements of the value of life beyond lost earning capacity? Yes they have. There is an extensive body of literature published in scholarly journals estimating this value in several different ways. What at those ways? First, economists have examined the value of life expressed by consumers in their expenditures on safety. If you buy an air bag for your car, you are spending money to reduce the probability of injury and death. You are placing an implicit value on your life in so doing. Secondly, economists have studied what certain risky occupations receive as extra compensation for the risk they present. When someone receives an extra $1.00 an hour as a security guard in a high-risk neighborhood, this represents a premium for the extra hazard to life. Finally, government agencies analyze the impact of lifesaving regulations and the cost associated with such regulations. All in all, there are dozens of estimates in the literature regarding the value of life published over the last several decades. What do those estimates show? The estimated show, typically, that we value life in the several million dollar range. Can you describe to us an example of how these studies are conducted? Yes. Assume that a person purchases a safety device for $700 and that device reduces the probability of his death from 7 to 10,ooo to

82

Q: A:

Q: A:

Q: A:

Q:

SKILLS & VALUES: EVIDENCE

5 in 10,000. By reducing his chance of dying by 2/to,oooths, or one chance in 5,000 at a cost of $700, economists would say that he valued his life at $3,soo,ooo. In effect, if 5,000 people spent $700 each on air bags, one life would be saved at a total cost of $3,500,000. These figures are not the actual figures from air bag studies, but just sample figures to show how the analysis is done, in simple terms. Is this estimate for the total value of life? Yes, these estimates include several components of value that must be subtracted out in order to arrive at the net satisfaction value. Specifically, we must subtract the net lost earnings value, the loss of household services, and the value of financial security for the statistically unknown, or anonymous, person being considered in these economic studies of the overall value of a human life. Could you explain this in more detail? Yes. The value of life estimates are, in many instances, for the lives of anonymous persons. From that total value, we must account for what the unknown, statistically average person earns, contributes in household services, and attributes as a value of financial security. These figures add up to an estimated $8oo,ooo. Netting this amount from a reasonably conservative estimate of the value of life leaves approximately $2,700,000 which I treat as an undiscounted value for the anonymous, statistically average person. What adjustments do you then make to the undiscounted $2,700,ooo figure? I estimated the value of life per year of life expectancy by dividing the remaining life expectancy of an average person, which is approximately ... [74 years in Kenny's case] years according to the life tables. What other adjustments do you make?

CH. 10

A:

Q:

A:

Q: A:

Q:

A:

Q:

DAUBERT

83

I then took into account the age, race, and sex of the decedent by calculating the losses through the life expectancy of [Kenny] using the same growth and discount factors we discussed earlier. So you figured out the hedonic value of life based on the value that is attributed to statistically average people and then adjusted it to the specific characteristics of the decedent, namely, age, race and sex? Yes sir. What further adjustments did you make? Economists do not know as yet how to adjust further, to take into account that the decedent was married, for example, or that he had two children. These factors and all the other factors regarding the quality of life of the decedent can only be taken into account by the jury, in my opinion. So your figures can be adjusted upward or downward depending on other factors that a trier of fact may wish to take into account? Yes sir. No further questions, Your Honor. CROSS-EXAMINATION

Q [Defense Attorney]:

A [Economist]: Q:

A:

Turning now to the intangible losses that you tried to estimate, what is the word you used for them? I called it a hedonic loss, the loss of the satisfaction of living. Are you saying that because ... [Kenny] lost out on the hedonistic opportunities he had, he should also be compensated, without taking into account any of the misfortunes he might ... [sustain] in his life such as sickness of a loved one? The term is hedonic, not hedonistic. The two are different. I have estimated the value that he placed on the satisfaction of living, which includes his fair share of life's misfortunes.

84

SKILLS & VALUES: EVIDENCE

Q:

What is the purpose of the studies that economists have made that you refer to? Were they done to value life in court?

A:

No, not particularly, but they can be used to do so. Government studies regarding average wages in various professions are not done to value lost earnings in court, but they are routinely used to do so. Are you saying that because I will pay $700 for an air bag to reduce the probability of dying by 1 chance in 5,000 that I will sell my life for $3,500,000? No, if I asked you how much you valued your life, the answer would probably be an infinite amount. But by looking at the fact that if 5 million people were to buy air bags, they would be spending $3,50o,ooo,ooo and in that group, approximately 1,000 lives would be saved. Whose life is not known with any certainty at all, but collectively as a group, 5 lives were saved at a cost of $3,500,000 each. This is the basis on which economists say that members of the group place a $3,500,000 value on life. Don't you save more than a life when you buy an air bag? Don't you prevent injury, and don't you perhaps save property also in many of these devices such as smoke detectors? Yes sir, that is true, and to the best of the ability of the analysis, the value of injury and property saving is taken into account. Do you expect us to believe that the average person, in buying safety devices, knows the risks that he is averting? Studies have shown that for common risks, average individual perceptions are quite realistic; for uncommon risks, however, such as for nuclear plant accidents, risks are misperceived. Is your benchmark figure the result of averaging?

Q:

A:

Q:

A:

Q: A:

Q:

CH. 10

A:

Q: A:

Q:

A:

Q:

A: Q:

DAUBERT

85

No, it is not a formal weighted average of the results. But I believe it is a reasonable estimate of the value that we may, on average, place on life. So it is speculative whether ... [Kenny, a four year old] valued his life at this figure, isn't it? No, it is not speculative. Speculative damages usually refers to the cause of the damages. Here we know that there was a loss from the ... [accident] we are not speculating. And in estimating the loss, we are not speculating any more than if we were estimating the earnings losses of a deceased 18 year old, who had just graduated from high school with no earnings history. In that instance as in this, we would be going to tables that show average earnings for males of certain ages. Dr.... [Jones] do you know whether ... [Kenny Hunter enjoys] life as much as an average person does? I don't know whether he .. . [does] or not. I have estimated the value that I believe he place[s] on his life based on the information that I can take into account. I can't help the jury to determine whether, due to other factors, ... [Kenny] value[s] his life less or more than my estimates. What is the multiple between the lowest and the highest figure in the studies you examined? The multiple is something like 5 for the more accepted studies. Five times from low to high! I find that a rather board range, Professor Economist. No further questions, Your Honor.

(1) City Attorney. List the points you will now make to the trial judge, in light of the evidentiary hearing, supporting your position that Dr. Jones's testimony should be barred by FRE 702(1)(2)(3) and the "Daubert trilogy." Some suggestions: (1) Think about the "nonexclusive" factors listed in Daubert - whether the methodology is

86

SKILLS & VALUES: EVIDENCE

"testable," any error rate, the existence of standards for conducting the methodology, whether it has been published in a "peer-reviewed" journal, whether the methodology is "generally accepted in the relevant field (i.e., Frye); (2) Focus on your general sense of what would make this methodology "unreliable" for assessing damages in this case read carefully (line-by-line) and trust your common-sense. (2) City Attorney. You have been thinking that if you can not keep plaintiff's expert off the stand, you may need your own expert. You know that reasonable experts can differ; so should you look around until you locate an expert who will give the opinion you want?

CH. 10

DAUBERT

87

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

88

SKILLS & VALUES: EVIDENCE

SElF-STUDY (1) We based our points on general Daubert factors and the core concern of assuring "reliable methodology" and "fit":

• We are here to determine the damages to a real human being; Kenny Hunter, not some anonymous "statistical individual" - as a result, there is no "fit" [FRE 401] between this proposed testimony and the issues in this case. • There are methodological issues: 0

0

0

0

0

0

Why are these "willingness to pay" studies relevant to (1) how our society values human life? (2) Loss of enjoyment of life from an accident? While Dr. Jones refers to articles/studies in peer reviewed journals, these articles/studies were not specifically about either the concept of, or the calculation of, so-called "hedonic damages." Dr. Jones "benchmark" is, by his own testimony not based on a "formal weighted average" of the results of willingness to pay studies - So, there is no evidence in the record that the method he uses to obtain this benchmark is anything but ipsi dixit. This approach lacks scientific "reliability" as persons applying Jones' concept to arrive at the value of a "statistical individual" vary so extremely that the values found in some studies are five times higher than the results of other studies. As such, it is hard to envision any "standards" guiding this analysis. Since the studies vary five-fold, and that is for "the more accepted studies," the "error rate" in this analysis would seem very high. While "willingness to pay" studies seem to fulfill the requirements of being "testable," their application to assessing the value of statistical human life cannot. The claim that this society places a dollar value on human life and that these studies guide us to a method for precisely fixing an amount of this value of a human life is just that- a claim. You can buy it or not, but you surely can't scientifically test rhetorical analogies.

(2) Choosing an expert who will support your position. Analysis of whether or not to choose a particular person as an expert begins at the beginning-your case theory. Underpinning your decision to select the

CH. 10

DAUBERT

89

person as your expert is the premise that the expert will provide testimony helpful in proving your case theory or in attacking your opponent's case theory. Therefore, a primary consideration is whether the person would make investigative findings and provide helpful testimony. That does not mean that you seek out an expert who will mechanically say what you want them to say, quite the contrary. In the first place, you can not be so eager to find an expert who will give you what you want that you wind up presenting false evidence. Model R. Prof. Conduct 3.3(a)(3). In the second place, in every aspect of your planning and preparation, you want to know about possible problems with proving your case theory. The domain of expertise is no exception. For example, as plaintiff's counsel in a civil suit in which a car struck a bicyclist in a crosswalk, you want a knowledgeable expert who will candidly tell you whether the motorist had sufficient time and distance to avoid the collision. Rather than hulling ahead towards an inevitably disastrous trial, you now can consider options such as developing a new case theory that can withstand expert scrutiny, or seeking quick settlement, or advising the client to stop pursuing the lawsuit to avoid putting good money after bad. In the third place, one of the worst mistakes an attorney can make with an expert is to try to push the expert into an opinion beyond what his or her expertise can support. This is both professionally uncomfortable for the expert and will most likely result in transforming otherwise helpful into harmful evidence. Imagine that an accident reconstructionist expert tells you that "while I cannot say absolutely that the speed of the motorist caused the collision, I can unequivocally say that the speed is in no way inconsistent with having resulted in the collision." Of course you'd like the expert to say, "Absolutely caused," but that's not what her expertise can support. So take what she is giving you, run with it, and look to amass enough non-expert evidence corroborating your causation theory such that, in combination with the expert's opinion of consistency, you will get past any summary judgment motion and be well on your way to settlement or to jury. On the other hand, if you try to force the expert away form "consistent" to "caused," the expert likely will appear uncomfortable and unsure, will probably get hammered by opposing counsel in a deposition and at trial, and you will have not only lost the helpful evidence the expert had to offer, you will now have harmed your entire case by showing the fact finder that you are willing to present weak, non credible evidence. [Most of the text for this answer comes from Marilyn Berger, John Mitchell, and Ron Clark, TRIAL ADVOCACY: PLANNING, ANALYSIS, AND STRATEGY 67-68 (2d. ed. 2008)]

Chapter 11 DEFINITION OF HEARSAY INTRODUCTION This chapter focuses upon the definition of hearsay, particularly the "truth of the matter asserted." (FRE 801 (c)). It is always surprising how many quite experienced lawyers have problems with Hearsay issues because they don't truly understand what is prohibited by the rule against Hearsay. A question as simple as, "what time was it?" can cause problems for lawyers and judges alike if opposing counsel objects, "hearsay, the witness is merely repeating what she read on her watch." Understanding what a "statement" is, who can be a "declarant," and the definition of "hearsay," especially when evidence is not being used for the "truth of the matter asserted," will resolve all but the most esoteric hearsay issues. It is imperative that every lawyer commit to memory the precise definition of hearsay so that it can be recited perfectly before a magistrate in any proceeding. After that the key (as always) is preparation. Anticipate a hearsay objection anytime you ask a witness what they heard someone say or read. Opposing counsel will likely be alert to possible hearsay before you ask the ultimate question of what the witness heard said or read (i.e., as soon as your witness testifies as being in contact with another person, or a document is mentioned). Then be prepared to argue why you are not seeking hearsay under the definition and/ or why your evidence falls under an exception. You should be aware that Hearsay is admitted into evidence in many judicial and quasi-judicial settings (e.g., administrative hearings, bail hearings) because it streamlines the admissibility of testimony, and often the probative value of such evidence outweighs the unavailability of any other evidence on an issue. The rule prohibiting Hearsay remains in effect, however, in criminal and civil trials in both state and federal courts, arguably in large part because no one can agree on an alternative, and in criminal cases to the extent the Confrontation Clause of the Sixth Amendment itself places limits on the allowable use of hearsay.

91

92

SKILLS & VALUES: EVIDENCE

EVIDENCE TOPIC: Definition of Hearsay [FRE

(a)(b)(c)] SKILLS INVOLVED: Mastering evidence doctrine; assessing evidence doctrine within case theory; responding to objections in trial context. ESTIMATED TIME FOR COMPLETION: 801

minutes LEVEL OF DIFFICULTY (1 TO 5): 22.5

•••

ROLE IN EXERCISE: You are the Prosecutor in the "Robbery Case" [See factual summary, on page vii.] THE EXERCISE

Prosecutor. Imagine you are putting on the direct examination of (1) a police officer who went to the scene of the robbery, (2) defendant's neighbor, (3) a clerk at the Day N' Night Cleaners, and (4) that you are cross-examining one of defendant's alibi witnesses. Repeatedly, defense counsel stands up and says, "Objection, Hearsay." In responding, your mind races through two questions - "Does the information I'm seeking from the witness even meet the definition of Hearsay?" and, "Even if it does, do I have an exception?" [Of course, in real practice one would hope that you've anticipated most of these objections in your preparation and have your response ready.] In this assignment, you will focus exclusively on the first question; i.e., whether or not the question you are asking seeks information that meets the definition of hearsay [FRE 801 (a)(b)(c)]. Look at the following transcript and work through the FRE 801 (a)(b)(c) analysis on the "Robbery Case." Write in your answers to defense counsel's objections in the spaces provided in the transcript. Additionally, you believe that the defense attorney, who is very skilled and experienced, knows that if you give the correct response to many of the objections, it will be overruled. But the defense attorney calculates that you might not know evidence that well and in any event will become flustered by all the objections. Is this ethical behavior on the part of defense attorney?

CH. 11

DEFINITION OF HEARSAY

93

TRANSCRIPT (1) Police Officer P [Prosecutor]:

Officer, focusing on the evening of August 15, 20XX:-1 around 9:15 p.m., did anything unusual happen? 0 [Officer]: Yes. I received a call from dispatch that there had been a robbery at Day N' Night Cleaners by a single white man with a gun and ... D [Defense Attorney]: Objection; hearsay. Move to strike. P: [Your Response?]

(2) Defendant's Neighbor

P: N [Neighbor]:

P: N:

D: P:

D:

P:

P: N:

D:

P:

And what happened then? Well, as I said, I was just having a friendly conversation with Ed Sam when his girlfriend came out of the house crying. Do you know why? Well, she said that her father had just told her ... Objection, Hearsay. Offer of proof. The neighbor will testify that she said her father wouldn't co-sign the note for the loan she and Ed Sam needed to buy the house they wanted. Same objection. Hearsay. [Your Response?] And did you see anything while sitting on your porch? Yeah. Ed Sam went to the mailbox, took out what appeared to be a stack of bills, then threw them on the ground yelling "god damn bills!" Objection, Hearsay. Move to Strike. [Your Response?]

94

SKILLS & VALUES: EVIDENCE

(3) Clerk at Day N' Night

P: D: P:

So, one young man working the presses sorta ran up to me and said "there's a suspicious guy in the back, and he ... " Objection, hearsay. Move to Strike.

[Your Response?]

P:

Could you describe the man who robbed you?

C [Clerk]:

Early, mid 20's, around 5'9" or so, 185 pounds, male, Caucasian, red jacket. Did you give a description of the robber to the police when came over that night? Yes.

P: C: P: D:

What was that description? Objection, Hearsay.

P:

[Your Response?]

P:

And what if anything did Ed Sam say after he pulled out the gun?

D:

Objection, Hearsay. Offer of proof. Witness will testify Same said "give me all the cash or you're dead."

P: D: P:

Same objection, Hearsay. [Your Response?]

(4) Alibi Witness

P:

Did you say anything to Ed Sam before he left the card game?

A [Alibi Witness]:

D:

Just that we really don't need more beer. Objection, Hearsay. Move to strike.

P:

[Your Response?]

CH. 11

DEFINITION OF HEARSAY

95

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

96

SKILLS & VALUES: EVIDENCE

SELF-STUDY (A) Meeting Defense Attorney's Objections

(1) Police Officer P [Prosecutor]:

Officer, focusing on the evening of August 15, 20XX-1 around 9:15p.m., did anything unusual happen? 0 [Officer]: Yes. I received a call from dispatch that there had been a robbery at Day N' Night Cleaners by a single white man with a gun and ... D [Defense Attorney]: Objection; hearsay. Move to strike. P: [Your Response?] Not for the truth. This just explains why the officer went to the cleaners. [Note: the defense can still argue that knowing it was "a single white man with a gun" is unnecessary for purpose of explaining the officer's subsequent conduct.]

(2) Defendant's Neighbor P:

N [Neighbor]:

P: N:

D: P:

D:

P:

P:

And what happened then? Well, as I said, I was just having a friendly conversation with Ed Sam when his girlfriend came out of the house crying. Do you know why? Well, she said that her father had just told her ... Objection, Hearsay. Offer of proof. The neighbor will testify that she said her father wouldn't co-sign the note for the loan she and Ed Sam needed to buy the house they wanted. Same objection. Hearsay. [Your Response?] Goes to motive; why the defendant would have suddenly needed money, and do something so desperate. And did you see anything while sitting on your porch?

CH. 11

DEFINITION OF HEARSAY

97

N:

Yeah. Ed Sam went to the mailbox, took out what appeared to be a stack of bills, then threw them on the ground yelling "god damn bills!"

D:

Objection, Hearsay. Move to Strike.

P:

[Your Response?] Throwing the bills on the ground is non-assertive conduct under FRE 801 (a)(2); and screaming "god damn bills!" is not an assertion. It's an emotional outburst, not directed at making a statement to anyone. And, it's certainly not for the truth. Again, it tends to show severe concern over financial matters which presents the jurors with a state of mind and motive consistent with robbery.

(3) Clerk at Day N' Night

P:

D:

So, one young man working the presses sorta ran up to me and said "there's a suspicious guy in the back, and he ... " Objection, hearsay. Move to Strike.

P:

[Your Response?] Not for truth. Would explain why clerk would look carefully at the man who turned out to be the robber, and therefore relevant to the accuracy of his description and identification.

P:

Could you describe the man who robbed you?

C [Clerk]:

Early, mid 20's, around 5'9" or so, 185 pounds, male, Caucasian, red jacket.

P:

Did you give a description of the robber to the police when came over that night?

C:

Yes.

P:

What was that description?

D:

Objection, Hearsay.

P:

[Your Response?] This undercuts the otherwise inevitable inference that in giving the description on the stand the witness was merely describing the defendant who was seated directly in front of the witness. It is not for the truth, but to show that the witness

98

SKILLS & VALUES: EVIDENCE

gave the same description that night as today in court. P:

And what if anything did Ed Sam say after he pulled out the gun?

D: P:

Objection, Hearsay. Offer of proof. Witness will testify Same said "give me all the cash or you're dead."

D:

Same objection, Hearsay.

P:

[Your Response?] First, it's a command, not a statement under FRE 8ot(a)(l). Second, these very words constitute the legal element of "force or fear" and, as such, are not hearsay in that they possess "independent legal effect."

(4) Alibi Witness

A [Alibi Witness]:

Did you say anything to Ed Sam before he left the card game? Just that we really don't need more beer.

D:

Objection, Hearsay. Move to strike.

P:

[Your Response?] Not for the truth as to whether or not they needed more beer. It goes to defendant's knowledge and notice. Defendant claims he only briefly left the card game, which provides his alibi, to get beer. But, this testimony raises the question as to why he would have left for beer - which, the prosecution of course contends he didn't - if he was told it wasn't needed.

P:

(B) Are the defense attorney's objections ethical? It depends. If the defense attorney has a viable basis for the objection,

it's permissible. If the objection is frivolous, it's unethical. Since the prosecutor's questions seek statements made out of court, they do raise hearsay concerns. The objections are permissible; the defense attorney does not have to self-edit the objections simply because he or she can imagine a good response to their objection.

Chapter 12 ADMISSION BY SILENCE INTRODUCTION This chapter focuses on so-called party admissions by silence (cf. FRE 8o1(d)(2)(B)). Unlike true adoptive admissions where the party affirmatively makes another person's oral or written statement their own (e.g., by saying, "I agree with you" in the former instance, and writing on a memo "I am with you on this" in the latter), admission by silence is really circumstantial evidence linked to a cultural assumption that a "reasonable person" would deny certain accusations were they false. Failure to deny the accusation in such circumstances (assuming the party could hear and was capable of responding under the circumstances), is then to be equated with actually adopting the statement as the party's. This doctrine that a person may be deemed to adopt or acquiesce in a statement of another if he or she does not protest a false statement creates a situation of serious concern when applied to persons of foreign cultures or education outside the mainstream of American society. In many Asian cultures it would be an act of disrespect to protest a false statement by an elder or perceived superior. In many cultures it is forbidden for woman to speak up in protest to any statement of a man, no matter how untrue the accusation. The same is true for non-verbal behavior. While a bowed head and nod may mean adoption of another's statement to an American, the same behavior may have a significantly different meaning to someone born or raised in a foreign culture. Even within our own culture there are many who believe that a child should not contradict or protest the statement of an adult. A lawyer must be vigilant to issues of culture, education, and tradition when confronting admissibility of an adoptive admission.

99

100

SKILLS & VALUES: EVIDENCE

EVIDENCE TOPIC: Party statements [FRE 8m(d)(2)]; admission by silence [C.f. FRE 8m(d)(2)(B)]. SKILLS INVOLVED: Analyzing an adversary argument; planning to meet adversary argument; doing investigation for information regarding an evidentiary foundation; developing basic "points" in counterargument; planning cross-examination to weaken persuasiveness of evidence admitted over your objection. ESTIMATED TIME FOR COMPLETION:

Ill 45 minutes

LEVEL OF DIFFICULTY (t to 5):

···~ ROLE IN EXERCISE: You represent the Plaintiff, Kenny Hunter, in the "Swing Set" case [See factual summary on page viii.] THE EXERCISE

Plaintiffs attorney. In the course of your investigation, you talked to a number of witnesses who were at the playground at the time of the accident. One of the witnesses, Norma Stern, a mother who was pushing her own 2 year old daughter on the swing next to Plaintiffs, tells you that "around 10 seconds" before Kenny's swing crashed, she heard a man who seemed to be with Kenny's father say, "Bill. You're pushing that swing too hard." Ms. Stern then tells you that she has already spoken to the City's attorney and told her the same thing. You know that the City's attorney will try to put Ms. Stern on the stand to get out this supposed statement, from which the defendant then can raise contributory negligence. You want to keep it out, or somehow weaken its persuasiveness if it comes in. You anticipate one response the defense will have to your hearsay objection is that the

CH. 12

ADMISSION BY SILENCE

101

statement is admissible as a party,* "admission by silence" [analogous to "adoptive admissions" in FRE 801(d)(2)(B)].** Plaintiff's attorney: Task#!Anticipating that the defense counsel will try to claim that this was an admission by silence, write out what factual investigation would you do to obtain information to oppose the defense at an In Limine hearing on admission of the statement. Recognize that in conducting your investigation (by which you are seeking information to provide the full context within which you will ask the judge assess the meaning of Mr. Hunter's silence) your inquiry may take you beyond obvious issues such as noise and distance to more nuanced information. When asking whether a jury could find that a reasonable person in Mr. Hunter's circumstances would have responded, you thus have to look at the full dimension of those "circumstances." For example, imagine that Mr. Hunter is a 35 year old single parent of three children, and the friend is a 30 year old bachelor who's never even held a baby. Wouldn't those "circumstances" bear upon whether a reasonable person in Mr. Hunter's position would deign to respond to this child-ignorant friend? What about specific ethnic or cultural influences? Our sense is that if these are widely known, the court may consider them in her admissibility decision; but if not, the court is likely to leave that information to the jury in deciding the weight to ascribe to the silence. So, use your creative understanding of human motivation and behavior. Task #2Now, imagine defense counsel makes an argument like that found in the LexisN exis Web Course that was created for this book.

* Courts generally consider a parent representing the interests of a minor child in a lawsuit to be a party.

•• It could also be argued to be non-hearsay; the mere words put Ms. Hunter on notice as to the risk. But there are real FRE 401/403 problems with this argument. First, the meaning of the statement is too vague and unclear - subject to so many different possible meanings - that admission is not helpful, and is likely to substantially more "misleading" or "confusing" than probative. Second, Ms. Hunter realistically would not have time to respond to such "notice" (or maybe he tried to respond, but it was too late) in the few seconds between the friend's alleged statement and the collapse of the swing.

102

SKILLS & VALUES: EVIDENCE

Plaintiffs attorney. List the points you would make in responding to the argument. Task #3Assuming Ms. Stern is permitted to testify, write down questions you would ask her on cross-examinations to weaken the persuasiveness of her testimony.*

• You might also locate the friend who allegedly made the statement and, if the evidence is admitted, might take the stand and deny even making such a statement, or testify that the contents were misunderstood, or explain, e.g., that it was part of an on-going joke between them. Of course, then the friend's credibility will be an issue for the jury.

CH. 12

ADMISSION BY SILENCE

103

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

104

SKILLS & VALUES: EVIDENCE

SELF-STUDY

(!2

Areas of Investigation • Go to playground. See distance between swings. Take appropriate photos. • What are the sources of noise or distraction? Do any of these sources particularly impact the area near the swings? • Talk to Ms. Stern. Is her hearing normal? • Where was she standing relative to the Plaintiff and other gentlemen? • What exactly did she hear? Did she look over to see Bill Hunter's reaction? Could she see his face or hands immediately after the comment? • How did she arrive at the "10 second" interval? • Does she have any specific knowledge that Plaintiff continued pushing Kenny in the same way as before the comment? • [Discuss these same issues with your client and his friend.] • Find out personal details about Mr. Hunter and his friend0 0

0

0 0

~

Relative age. Relative experience with children. Nature and extent of their relationship, including ongoing jokes or inter-personal issues, as well as any personality quirks. Any relevant cultural or ethnic influences. Any hearing impairment.

Points in response to Defense Counsel's Argument • Not like accused of child abuse. Hardly something for which someone would stop everything to respond to. • Was in middle of pushing child. Would have "reasonably" processed information and weighed it on his decision about how he was pushing Kenny, not on formulating what to say back to the friend. • Given he was in the middle of an activity, and the time between the statement and the accident was in Ms. Stern's estimation "around 10 seconds", a jury could not reasonably infer he would have responded within this extremely brief timeframe.

CH. 12

ADMISSION BY SILENCE

105

• And this especially so, because it is unclear what such a statement meant - i.e., was it in reference to scaring the child? Physically jarring him? Risking the child falling out of the swing? Hurting his own back while pushing? Breaking the equipment?

{32

Cross-examination questions if Ms. Stern testifies a.

Plaintiffs ability to hear Mr. Hunter was pushing his child? Playing with the child? This was a public playground? And it was a Saturday? It was filled with children and their parents? Laughing? Shouting? b. Ms. Stern's ability to hear You were pushing your own daughter? And I imagine you pay attention while pushing a 2 year old on a swing? You weren't in a conversation with Mr. Hunter or the gentlemen with him? There are spaces between the swings? You were several feet away from Mr. Hunter and the other gentleman? So if Mr. Hunter did not say any words but gave the gentleman some quick, negative look or hand gesture you would not necessarily have seen that? c. Interpretation Ms. Stern, you don't personally know Mr. Hunter? And you don't personally know the other gentleman? You do not know anything about their relationship? So, from your own personal knowledge you don't know whether whatever comment was made was part of an ongoing joke between the two men? Or, a reference to Mr. Hunter's hurting his back? Or, just about possibly scarring Kenny?

Chapter 13 EXCITED UTTERANCE INTRODUCTION This chapter focuses upon the admissibility of an excited utterance (FRE 803(2)). This exception turns out to be very significant in the prosecution and defense of Domestic Violence Assault cases. It is common knowledge that victim's of domestic violence frequently recant their initial accusations to the police (or may not even show up on the day of trial). If this happens, unless the prosecution has another witness to the assault, the case may be over. If the victim recants on the stand, she can be impeached with her prior inconsistent statement (FRE 613), but generally that statement can only be used for impeachment, not substantive evidence (i.e., truth). But see, FRE 801(b)(1)(A) (inconsistent statement make at a prior proceeding under oath admissible for the truth). If, however, the prior statement is found to satisfy the excited utterance exception to the hearsay rule, it can be used as substantive evidence of the alleged assault. The prosecutor then at least can take the case to the jury if, in light of the circumstances and other evidence (e.g., photos of bruises), it makes sense to go to trial. Commonly the excited utterance exception to the hearsay prohibition along with present sense impression, FRE 803(1), forms the basis for meeting hearsay objection to the admission of 911 calls and post-assault interviews with police. As such, whether a particular statement gets into evidence under the Excited Utterance exception to the prohibition against Hearsay is inevitably a hard fought battle between attorneys in a pretrial motion in limine. Each of the various elements of the foundation for an Excited Utterance present problems of proof. What constitutes a sufficiently startling event to cause an observer/declarant to be "stressed" by it? What is the nature of the stress of excitement alleged and how much of it must be present to qualify the ensuing statement? How does one prove an observer is "stressed?" These are all very subjective determinations and questions regarding what is relevant and probative evidence on those issues can prompt heated debate between opposing counsel. Often debate focuses on whether the utterance occurred while the "declarant was under stress of excitement." Depending upon the event 107

108

SKILLS & VALUES: EVIDENCE

or condition and the relationship to the observer, the stress can arguably be only a second or two or perhaps even days. A woman rendered unconscious upon observing the death of her child was held to be under the stress of the event after regaining consciousness weeks later. It is not unheard of for counsel for one side or the other to retain experts on the emotional state to testify at a hearing on admissibility of a proffered utterance. Where the elements of a foundation are subjective, as in the case of the Excited Utterance exception, an attorney is left to imagine all the various pieces of information which could create "the story" of overwhelming stress, or its opposite, and to then seek and present this information (or, more accurately, the pieces of information the attorney could find) to the Judge.

CH. 13

EXCITED UTTERANCE

109

EVIDENCE TOPIC: Excited Utterances [FRE 803(2)] SKILLS INVOLVED: Understanding the interrelationship between doctrine and fact collection and characterization; gleaning information from documents, planning a voir dire (cross examination-like inquiry of a witness framing questions designed only to elicit information desired to support your position on the element(s) of an evidentiary objection). ESTIMATED TIME FOR COMPLETION:

II 30 minutes LEVEL OF DIFFICULTY (1 TO 5):

•••

ROLE IN EXERCISE: You are a criminal defense attorney representing Sid Deets, a client charged with domestic violence.

THE EXERCISE

You are in an In Limine hearing trying to exclude certain out of court statements made to Officer Randolph by the alleged victim, Selma Sutter. The statements accuse your client of slapping and threatening her. Ms. Sutter, who was the only witness to the incident other than your client, has subsequently recanted her testimony; so unless the prosecutor can bring in her hearsay statements to the officer or those on the 911 tape [which is not be considered in this chapter*] under some exception, the state will not have any substantive evidence to proceed and will have to dismiss. The only witness at the hearing will be Officer Randolph. If the prosecutor is successful at the hearing, Randolph will also present Ms. Sutter's statements at trial. Prior to the hearing, you reviewed the officer's Police Report and the Domestic Violence Victim Report, and have planned your voir dire based on these two reports. In so doing, keep in mind that all your

• The 911 Tape will be considered under a Constitutional Confrontation Clause analysis in Chapter 14.

110

SKILLS & VALUES: EVIDENCE

questions have to support your argument that the prosecutor can not establish the evidentiary foundation for 803(2), and that you should only attempt to bring out points the officer has to acknowledge under her report and/ or as a matter of commonsense.

CH. 13

111

EXCITED UTIERANCE

EXCERPT FROM DOMESTIC VIOLENCE VICTIM REPORT Date and time of report: !?OOhl'l. Reporting officer: '&mtk~6

!!17/.:zoAA

{'Batfge #

3g6!J

Victim: s·~tma .SufU!r observed by Officer: Physi ca1 Appearance: l!icffm cryin_.q Anls6ahng; 'We

rei, nfJ$e runninq ~

Victim Demeanor: calm Mark Injuries:

_It_ Upset

Hysterical

112

SKILLS & VALUES: EVIDENCE

EXCERPT FROM POLICE REPORT OF OFFICER RANDOLPH Narrative: At approximately 1420 hours I was dispatched to the scene of an alleged assault at 217 Plaine Ave. Upon my arrival at 1445 hours I contacted the victim, Ms. Selma Sutter. Ms. Sutter was sitting with two woman who identified themselves as her mother and sister. The mother appeared angry, asking what the police were going to do to the man who beat up her daughter. Determining that Ms. Selma Sutter was the sole witness to the incident, I began my investigation with her. Ms. Sutter was crying and shaking, and had very red eyes and a runny nose. She told me that her boyfriend of two years, Sid Deets, who lived in her house with his 8 year old daughter had slapped and threatened her. (I noticed a slight red mark on her left cheek which I subsequently photographed, logging the Polaroid in the evidence room.) When she told Deets she was going to call the police, he left with his daughter and has not been back since. Apparently Deet's lost control when the victim began criticizing his daughter's eating habits. The victim then provided a written statement on the Domestic Violence Victim Report. Signed: Officer 2 Randolph 5/7/2oXX (Badge # 3061)

Defense Counsel, (1) list the points you plan to bring out on your voir dire of Officer Randolph (recognizing that some of these points might come out on the prosecutor's direct exam of the officer.) For purpose of the voir dire, imagine that at the hearing Randolph's testimony consists solely of the following points: (a) when the officer arrived at Ms. Sutter's home she was crying and shaking (b) her eyes were bloodshot and her nose was running (c) she said the defendant had slapped her and pointed to a reddened area on her left cheek (which the officer photographed) (d) she then provided a written statement on the bottom of the "Domestic Violence Witness Report." (2) You also think the Judge might be more prone in your favor if he or she hears the cruel way Ms. Sutter treated defendant Deet's daughter. Can you ethically bring this in front of the Judge when the legal issue is limited to the application of FRE 803(2)?

CH. 13

EXCITED UTIERANCE

113

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

114

SKILLS & VALUES: EVIDENCE

SELF-STUDY The elements of the Excited Utterance exception (2) to FRE803 are: First, the statement must relate to the startling event or condition; and, second, the declarant was under the stress of excitement caused by the startling event or condition. (1) The voir dire Though being hit is certainly a startling event [FRE 803(2)], the issue is whether Ms. Sutter was still functioning under the (cognitively impairing) stress of that event. To that end, we try to bring out the following points in our voir dire: • The length of time between the event and the statement (affording Ms. Sutter's time to begin to calm down.) • That Ms. Sutter had already discussed the events within other before talking to the officer (so that she could have begun to "rehearse" a version of the event.) • The minor extent of Ms. Sutter's injuries (under the assumption that the more serious her injuries, the greater the stress from the event.) • That she was coherent when speaking with the officer. • That she could legibly write down her statement. • That on the DV form, the officer checked "upset," not "Hysterical." The transcript (with voice-over) of voir dire to weaken the foundation for the excited utterance can be found in the LexisNexis Web Course that was created for this book. (2) Ethics of advancing evidence argument by making crime victim look unsympathetic This assignment could also raise an interesting issue of professional ethics. Ms. Sutter's actions towards the defendant's daughter could be seen as somewhat despicable, and seem to cast Deet's behavior as her father in quite a different light than the common image of a DV assault. Yet this would seem to have no apparent relevance to the issue of

CH. 13

EXCITED UTIERANCE

115

whether Ms. Sutter's statement to Officer Randolph was an excited utterance. Knowing that this information could well influence the judge in her client's favor, should defense counsel attempt to present the information under some tactic such as, "if Your Honor will look at this blow-up of Ms. Sutter's statement and read through, you will see that the writing is clear and easily read, and that the spelling, punctuation and grammar are just fine. Ms. Sutter may have been 'upset,' but this was not written by someone so under the stress of some incident that she was incapable of reflection ... ?" Would this conduct be ethical? Does it constitute a "sharp practice"? On the other hand, counsel does have a plausible reason for directing the court to Ms. Sutter's written statement, and counsel is committed to zealous advocacy on behalf of her client.

Chapter 14 CONSTITUTIONAL CONFRONTATION INTRODUCTION This chapter deals with the application of Constitutional Confrontation to a 911-tape. In 2004, the United States Supreme Court profoundly changed the interpretation of the Sixth Amendment Confrontation Clause, thereby forcing lawyers across the nation to rethink the basis of applying Confrontation analysis to various exceptions to the Hearsay Rule. Previously, Confrontation analysis of exceptions to hearsay was based upon long held common law and common sense notions of reliability. With Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, (2004) the court redirected the focus of inquiry to "testimonial statements" rather than a reliability or trustworthiness analysis. In a criminal case, if a statement is "testimonial" in nature, then it is excluded unless its reliability is tested through cross-examination. While the Court in Crawford set forth some exceptions to this rule, indicating that business records and dying declarations might not be considered "testimonial" in nature, the court left future case law to develop as to other hearsay exceptions. Davis v. Washington, 54 7 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 224 (2006) is one of the cases in which Supreme Court sought to further explain their analysis of the new "testimonial statement" prohibition interpretation of the Confrontation Clause as it relates to the Hearsay Rule. (Both Crawford and Davis recognized that the requirement of cross-examination need not be met where the defendant caused the unavailability of the declarant, by killing her for example.) Nowhere have this line of cases had more impact than in domestic violence and child abuse prosecutions. Exceptions to the Hearsay Rule had been crucial in such prosecutions. DV victims not uncommonly recant their accusations, or simply refuse to appear. While their statements constituted prior inconsistent statements for purposes of impeachment (FRE 613), those prior statements - often to police were not substantive evidence. Therefore, if no one witnessed the assault other than the victim, the prosecution would have no substantive evidence with which to pursue the case and would have to dismiss. And the result was the same with little children. Many 117

118

SKILLS & VALUES: EVIDENCE

states had hearsay exceptions which allowed the victim's statement to be admitted for substantive evidence, even allowing them to have their uncross-examined testimony be admitted through video tape and other means. After Crawford, however, all this evidence was subject an analysis of whether it was or was not to be characterized as "testimonial." Davis and its companion case provide further refinement of the Court's Confrontation analysis of hearsay begun in Crawford. Crawford and its progeny have had an unusually large impact on criminal trials and preliminary hearings in the West where undocumented aliens are often defendants, victims, and witnesses to crimes. Unwilling to face the scrutiny of exposure, they readily become unavailable before they can be cross-examined. The criminal defense bar has long complained that the traditional exceptions to the Hearsay Rule have resulted in the admission of inordinately prejudicial evidence against their clients, urging trial court judges to utilize a narrow interpretation of hearsay exceptions. Ironically, the new Crawford/Davis approach may well accomplish such a narrowing, albeit by a different route.

CH. 14

CONSTITUTIONAL CONFRONTATION

119

EVIDENCE TOPIC: Constitutional Confrontation [U.S. Constitution, 6th Amendment; Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d. 224 (2006).] SKILLS INVOLVED: Read U.S. Supreme Court case for guidance; categorizing facts in a "document" [911 tape] according to interpretation of doctrine; identifying facts in document that strengthen or weaken your position under the doctrine; being able to explain your selection. ESTIMATED TIME FOR COMPLETION:

Ill 45 minutes

LEVEL OF DIFFICUL1Y (1 TO 5):

••••

ROLE IN EXERCISE: You are the defense attorney, representing Sid Deets, in the DV assault case. THE EXERCISE

Defense Attorney. The alleged victim, Selma Sutter, called 911 after your client Sid Deets allegedly struck her. You have a copy of the 911 tape (which the prosecutor provided in discovery.) Since Ms. Sutter is now recanting, and she is the sole eye-witness to the alleged assault, the only evidence the prosecutor has to even get the case to a jury is a police officer's recounting of statements Ms. Sutter made to him,* and the 911 tape.

• This statement is analyzed in Chapter 13, which focuses upon excited utterances [FRE 803 (2)].

120

SKILLS & VALUES: EVIDENCE

At this point you want to focus on the 911 tape, and consider arguments based upon the Confrontation Clause to exclude it;* you review the most recent and pertinent U.S. Supreme Court Case. [See Davis v. Washington.] With the Davis doctrine in mind, listen to the 911 tape posted in the LexisNexis Web Course that was created for this book, and then print out a transcript of the call. Now list (1) the facts from the tape which strengthen your position - and a sentence explaining the significance of each under the Davis doctrine (2) the facts from the tape which weaken your position - and a sentence explaining the significance of each under the Davis doctrine.

*You have also considered a hearsay objection, but do not believe that it provides a promising option. While the accusations against your client on this tape are sufficiently after the event so as to make it unlikely the tape will be found to qualify as a present sense impression [FRE 803(1)], from your experience, you believe the court will likely characterize this as an excited utterances [FRE 803(2)].

CH. 14

CONSTITUTIONAL CONFRONTATION

121

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

122

SKILLS & VALUES: EVIDENCE

SELF-STUDY In analyzing Davis, we extracted four (4) factors that appear intended to guide a future court's decision as to whether statements on a 911 tape are "testimonial" or "non-testimonial" [note that under the Davis analysis, some statements in a 911 tape might violate Confrontation if used at trial, while other statements in the tape might not]: 1.

2.

Whether the primary purpose of the questioning was to determine past fact, or to ascertain ongoing events. Whether the current situation could be described as an "emergency."

3. Whether the nature of the questions asked or answers given focused on the present situation, or past events. 4· The "level of formality" involved in the questioning. (1)

Facts strengthening your position that the 911 tape violates the Confrontation Clause and thus the tape is not admissible a.

Much of questioning focuses on past event - that Deets slapped her, threatened her; Deet's description; where he went. b. While the questioning is not "formal," Ms. Sutter appears to be calling to make an accusation much more that to receive help - she twice refers to having Deets arrested; thereby the "nature of the answers given focused on the present situation." c. There's not really an emergency- Deet's is gone; Ms. Sutter is not hurt, the operator perceives the role of the police as neither providing protection nor helping Ms. Sutter, but "getting her story"; and, even if there appeared to the 911 operator that there might be an emergency during the initial portions of the call, by the time the operator obtains the crucial information regarding Deet's name there plainly is no longer any reason to perceive the situation as an emergency. (2)

Facts weakening the position that the 911 tape violates the Confrontation Clause*

*Note, even if you lose on Crawford/Davis the game is not over. To gain admission of the tape, the prosecutor must still convince the court that the 911 tape meets some hearsay exception like excited utterance [FRE 803(2)] and/or present sense impression [FRE 803(1)].

CH. 14

CONSTITUTIONAL CONFRONTATION

a.

123

This is an emergency - Ms. Sutter immediately asks, "Please, help me"; the defendant could return at any minute (he has a key), thus the 911 operator stays on the line until the police arrive. b. The questions focus on the present situation - is she injured or in need of medical attention? Will police risk facing an intoxicated and/ or armed defendant should they encounter Mr. Deet's? c. The questioning is informal - nowhere does the 911 operator even ask for the story of the assault; she leaves that role to the police.

Chapter 15 BUSINESS RECORDS INTRODUCTION This chapter deals with laying the foundation for a business record under FRE 803(6). The Business Records exception to the Hearsay Rule is one of the most commonly used in courtroom and other hearing venues. Consequently, each element of the foundation for a business record and a variety of ways to prove each element must become second nature to a trial lawyer. The companion rule, FRE 803(8) absence of entry from a business record is really a combination of FRE 803(6) and circumstantial evidence (i.e., the missing information is of a type which would have been noted in the records if the alleged event had taken place). Difficulties of Proving the Exception Most often the difficulty lies, not in laying a proper foundation, but in finding the right witness or witnesses who can testify to each element. Private businesses and organizations may not have any one employee who could be identified as the "custodian of records" or anyone with sufficient understanding of the process of creating, storing and retrieving the particular records so as to be able to lay the proper record. So several witnesses maybe needed to be called to explain and establish the record keeping practices of the business. Also, it is not uncommon for information to be passed through several sources before it is ultimately recorded in a business record. In such cases, the foundational element requiring "information be transmitted by a person with knowledge" may provide several fruitful focuses of attack by counsel seeking to keep the business record from being admitted into evidence. First, the attack may center on the "trustworthiness" of the records. Like the game of "telephone," information passed through too many people (particularly orally) can become unreliable. Second, the record may contain second-level hearsay (FRE 8os). Since the business record exception only covers those in the business, statements from others are only admissible if a separate exception to hearsay can be put forth.

125

126

SKILLS & VALUES: EVIDENCE

Witness Preparation Because of the complexity of the foundation for a business record it is always advisable to prepare the business record witness(es) before they take the witness stand to testify. Difficulty in laying an adequate foundation can result in exclusion of the proffered evidence in its entirety or at least in embarrassment of the attorney in front of the client and jury. FRE 803(6) and 902(11) now permit that a record with a barebones declaration listing the foundational elements for a business record will suffice to lay the proper foundation. Opposing counsel is still free to call and examine the foundational witness. Also, in a case where there is a real issue about the reliability of a particular business's record keeping process, a barebones declaration may obtain admissibility, but is unlikely to be sufficiently persuasive to convince a jury of its accuracy. In fact, the failure to call a foundational witness in these circumstances may lead the jury to assume the worst.

CH. 15

BUSINESS RECORDS

127

EVIDENCE TOPIC: Exception to hearsay rule - Business Records [FRE 803(6)], statements for purpose of Medical Diagnosis or Treatment [FRE 803(4)]; Multiple levels of hearsay [FRE 8os]. SKILLS INVOLVED: Analyzing a document for evidentiary issues; drafting a declaration based on two, interrelated rules; analyzing a rule and making a persuasive argument based on that analysis. ESTIMATED TIME FOR COMPLETION:

I 45 minutes

LEVEL OF DIFFICULTY (1-5):

··~ ROLE IN EXERCISE: You are the attorney for the Plaintiff in the "Swingset Case" [See Factual summary on page viii.] THE EXERCISE

Plaintiffs counsel. As part of your investigation, you obtained Kenny Hunter's Medical Records from Mercy Hospital, where he was taken after the accident and subsequently treated (Kenny's father had provided signed authorization for release of medical records.) At this point, you are considering bringing into evidence the emergency room records, principally the physician's notes, dictated after treating Kenny. [For your convenience we have provided "English Translations" of the physicians notes in bolded statements set in parentheses within the report.]

128

SKILLS & VALUES: EVIDENCE

EXCERPTS FROM PHYSICIAN'S NOTES

Patient Name: Kenny Hunter Medical Record Number: M032898 Date of Service: 2j2j2oxx Chief Complaint: Fell History of Present Illness: Patient is a 4 year-old male who arrives by ambulance immobilized in a cervical collar and long spine board who was on a swing when it collapsed and the patient fell approximately 4 feet while swinging backwards. The patient's father states that the chains holding the swing detached from the wooden frame because they were held by bent nails. (The patient's head, neck and spine were immobilized to keep him from moving - in the event of a spine injury any movement could result in worsening of a spinal cord injury.) The patient's father also states that the patient fell on his left side and then hit his head. He had loss of consciousness for what his father estimates was two minutes. Upon awakening the patient remained confused and was not responding to him normally. The father describes the patient as having "glassy eyes." The patient has vomited four times since the fall. I do not get the patient to respond to me verbally or follow any commands, though his eyes are open. Allergies: No known drug allergies. Medications: Takes no medications regularly. Past Medical History: Non-contributory. Otherwise healthy. Immunizations: Up-to-date. Skin: Cool and dry. HEENT: Patient has a hematoma in the left temporaljparietal region of the scalp. No palpable deformity or step-off of the skull. Facial bones stable without deformity or apparent tenderness. The patient is noted to have hemotympanum on the left. No Battle's sign or racoon's eyes. No drainage noted from the ears or nose. Dentition appears intact and appropriate for age. Dental occlusion normal. (The patient has a knob on this side of his head, indicating trauma to that area- no

CH. 15

BUSINESS RECORDS

129

other apparent signs of a fracture of the base of the skull or other broken bones in the face.) Pelvis: Stable, nontender. Extremities: Patient has abrasions of the left shoulder, elbow and left hip. No apparent deformity. No specific localized bony tenderness. Neck/back: No apparent cervical, thoracic or lumbar spine tenderness, deformity or stepoff. Neuro: Patient opens eyes spontaneously, moans to pain and localized pain, giving him a GCS score of 11 (E4/V2/Ms). Does not follow commands but moves all four extremities. Unable to assess sensation completely. Pupils equal, round and reactive to light. {The GCS, or Glasgow Coma Scale, score is predictive of the severity of a head injury and for whom emergent neurosurgery may be necessary. It measures responses in 3 ways- eye opening {score of 1-4), verbal response {score of 1-5), and movement {motor function- score of 1-6). A dead patient {doesn't open eyes, talk or move) gets a score of 3· A score of 15 is normal. Generally a patient with a GCS score of 14 or 15 is very unlikely to need neurosurgery. This patient's score of 11 indicates a potentially serious injury.) The patient was given a second 20 mL/kg bolus of normal saline in the emergency department, after which his blood pressure improved to 78/so with a heart rate of 120, indicating a favorable response. The patient's hematocrit was returned at 29, indicating mild anemia, likely as a result of blood loss. {A second fluid bolus was given because the patient had lost enough blood to require it- the anemia reflects blood loss as well, but at this point the blood loss is not enough to warrant blood transfusion.) The patient's CT of the abdomen and pelvis revealed some free fluid as well as a Grade II supcapsular splenic hematoma/ laceration according to radiology report. {The spleen is injured, but these days most injuries like this are managed without surgery- not so long ago this patient would have had his spleen removed, but it has been proven that these patients do well by watching them

130

SKILLS & VALUES: EVIDENCE

closely and operating only if they continue to show signs of bleeding.) The patient's head CT shows an epidural hematoma in the left temporal-parietal area, 7 mm in thickness, with no midline shift. (This is the most critical injury- bleeding inside the skull around the brain, and this type of bleeding is arterial, which means it could get a lot worse in a hurry and result in death.) I spoke with Dr. Parrish, on call for trauma at Mary Bridge Children's Hospital, who accepted the patient for transfer. The patient's spleen injury is likely non-operative, though obviously the patient's epidural hematoma is life-threatening. I spoke with the patient's parents and informed them of Kenny's injuries and of his critical condition and the need for emergent transfer for neurosurgical intervention, to which they consented. SIX MONTH FOLLOW UP: After a 15 day hospital stay, the patient was discharged to an inpatient rehab facility where he spent two months performing physical, occupational and speech therapy. He continues to have headaches, dizziness and occasional blurred vision. He is back in school and is repeating his prior grade level as he has some residual cognitive deficits. Whether he will return to his baseline cognitive function remains to be seen. His mother had to quit her job to help care for him. The family has experienced significant financial strain.

A. The document - While you will likely use this record in conjunction with the testimony of a medical expert whose testimony will go to damages [FRE 702], you want to have grounds for arguing that the document is independently admissible in order to avoid possible problems with FRE 703 ["Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."]

Imagine you plan to gain admission of the ER record as a Business Record [FRE 803(6)], and plan to do that- not by a live witness- but,

CH. 15

BUSINESS RECORDS

131

as provided in FRE 803( 6), "by certification that complies with Rule 902 (11)." Your declarant will be will be Karen Shaw. Ms. Shaw is a Registered Health Information Technologist [RHIT], with a certification from a two year program at Brazier Community College, who has worked in the Medical Records Department of Mercy Hospital for the past eight years. She is familiar with the creation, storage and retrieval of all records at Mercy Hospital. Draft Ms. Shaw's declaration per FRE 803(6)/902(11). In the Superior Court of the State of Waca, County of Dusant Kenneth Barry Hunter, a minor, by his parents Bill and Susan Hunter vs. City of Santa Magnolia

Declaration of Karen Shaw, RHIT Pursuant to 803(6)/902(11) No. Civ. 2-076-:XX

I, Karen Shaw, declare the following:

I have read the foregoing, and swear under penalty of peijury that it is true and correct to the best of my knowledge

Declarant Executed this 22nd day of July, 20:XX in the county of Dusant. B. Second Level Hearsay Issues - Look at the ER record. Do you have

any "hearsay included within hearsay" [FRE 8os] issues? If so, briefly outline how you will deal with such issues.

132

SKILLS & VALUES: EVIDENCE

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

CH. 15

BUSINESS RECORDS

133

SELF-STUDY A. The Document - Note that FRE 803(6)/902(11) only require a barebones recitation for admission. We have added material we felt made the declaration a bit richer, indicating our additions to the bare requirements by placing the additional language in brackets.

In the Superior Court of the State of Waca, County of Dusant Kenneth Barry Hunter, a minor, by his parents Bill and Susan Hunter vs. City of Santa Magnolia

Declaration of Karen Shaw, RHIT Pursuant to 803(6)/902(11) No. Civ. 2-076-:XX

I, Karen Shaw, declare the following: (1) I am a trained Registered Health Information Technologist (RHIT) with an RHIT certification from a two year program at Brazier Community College. Since my graduation in 20XX-o8. I have worked in the Medical Records Department of Mercy Hospital. I am familiar with the methods of creation, retention and retrieval of a Mercy Hospital records, including ER records (2) The attached ER record [Attachment A] was personally photocopied by me from the file of Kenneth Barry Hunter, d.o. b s/9/2oXX-4, which I retrieved from the Mercy Hospital storage facility. (3) Creation of ER Record- The attached ER record: (a) was made at or near the time of the occurrence set forth by, or from information transmitted by, a person with knowledge of those matters. [The information comes directly from the physician, ER tech, and/or nurse, and is entered onto the ER form contemporaneously or very shortly after being given. The ER Physician dictates a full report shortly thereafter, and the dictation is typed and reviewed, generally within an hour. This report is then attached to the form.] (b) was kept in the course of the regularly conducted activity. [The ER records are maintained as part of the patient's full hospital file.] (c) was made by the regularly conducted activity as a regular practice. [The thoroughness and accuracy of records

134

SKILLS & VALUES: EVIDENCE

such as those from the Emergency Room are central to the operation of the hospital. They are used as the basis for diagnosis and treatment decisions, become part of the patient's medical history, and are used for billing and insurance claims.] I have read the foregoing and swear under penalty of peijury that it is true and correct to the best of my knowledge. Karen Shaw Declarant Executed this 22nd day of July, 20XX:, in Dusant County B. Second-Level Issues- Bill Hunter is not a member ofthe "business"

(i.e., Mercy Hospital), so his statements about the chain breaking and failure of the bent nails does not fall under 803(6); you therefore need a separate exception for this hearsay within hearsay [FRE 8os]. The statement is long after the event, so cannot qualify as present sense impression [FRE 803(1)] and, while possible, does not sound like it would fulfill the requirements for an excited utterance, although the father would no doubt be upset and very concerned [FRE 803(2)]. That would leave statements for the purpose of medical diagnosis and treatment [FRE 803(4)]. While most of the statements by Kenny and his father would appear to fall squarely under this rule, defense counsel will argue that the statements about the chain and nails "are not reasonably pertinent to diagnosis and treatment." [FRE 803(4)] As to the chains, you could take the position, "It was important for the doctors to know that Kenny did not just slide off the swing or merely pitch forward and roll off, but that without warning he suddenly plummeted several feel to the ground." As to the bent nails, it will take more imagination than either of the authors could muster; we simply couldn't figure out why the doctors needed to know the precise reason the chains became undone from the frame. The transcript (with voice-over) of the examination laying the foundation for a business record can be found in the LexisNexis Web Course that was created for this book.

Chapter 16 FORMER TESTIMONY INTRODUCTION This chapter focuses on a central requirement of the Former Testimony exception to the hearsay rule- similarity of "motive." FRE 804(b)(1). Because former testimony is taken under oath given under penalty of perjury, trial lawyers often view it is as exceptionally potent evidence. Consequently, lawyers go to great lengths to establish, find and admit favorable evidence in the form of prior testimony. Given the witness is under oath, examined, and represented by counsel, statements made as former testimony tend to be persuasive with the fact finder. Opponents of proffered former testimony fight equally hard to prevent admission of former testimony that they view as damaging to their case or client. In civil cases, part of deposition practice is an awareness of the potential for answers to questions in these pretrial proceedings being admitted ultimately at trial under the Former Testimony exception to the Hearsay Rule. As an exception to the hearsay rule, Former Testimony can stand alone, provided the witness is "unavailable." If the deponent is found unavailable, the admissible portion of the deposition will be read to the jury. This can result in a "dramatic" reading between attorney and a surrogate chosen by counsel to play the deponent. Again, however, it must be admissible. The former testimony exception treats the unavailable deponent as if he or she were on the stand. If someone on the stand attempts to repeat a conversation with another, a hearsay exception will be forthcoming. Similarly, if a deponent states what another witness said, the former testimony exception will allow the unavailable deponent's testimony that the words were spoken. But if the party offering the deposition seeks to use the statement the deponent heard for the truth, they have a second-level hearsay issue (FRE 805) and must come up with an exception. Even if the witness is available so that FRE 8o4(b)(1) can not be utilized, the former testimony can be used to impeach witnesses at trial. (For this reason experienced criminal defense counsel will only rarely allow a defendant/ client to testify at a preliminary examination or at a Grand Jury hearing for fear of that former testimony being used 135

136

SKILLS & VALUES: EVIDENCE

to impeach at trial.) Often the cross-examiner at trial can anticipate and prepare for the impeachment, but it is equally likely that the inconsistent testimony occurs during trial without advance warning. This is why it is of utmost importance to know the contents of former testimony and to listen carefully to the testimony in trial so you can identify and impeach the witness when it comes your turn to crossexamine. Thus, if a witness has given prior testimony which, in any meaningful way, differs from their present testimony, they are destined to be attacked on cross-examination. The clever cross-examiner begins by locking the witness into his or her present testimony as the absolute truth under oath. Then, armed with the prior inconsistent testimony, the cross-examiner demonstrates to the jury that both statements cannot be true, and yet the witness has sworn under penalty of perjury that they are. The dramatic effect of such a revelation in open court can change the course of a trial. Since such testimony was given at another "proceeding" and "under oath" it will be admitted as substantive evidence (i.e., the truth, as well as for impeachment).

CH. 16

FORMER TESTIMONY

137

EVIDENCE TOPIC: Former Testimony exception to hearsay rule [FRE 804 (b)(1)] SKILLS INVOLVED: Analyzing opposing party's argument; creating a counter-argument; performing a counter-argument; characterizing a factual record contained in an existing transcript to fulfill foundational requirements of evidentiary Rule. ESTIMATED TIME FOR COMPLETION:

I 30 minutes

LEVEL OF DIFFICULTY (t to 5):

•••

ROLE IN EXERCISE: You represent the Plaintiff, Kenny Hunter, in the "Swing set Case" [See factual summary on page viii.] THE EXERCISE Plaintiffs counsel. In the course of your investigation you found out about a previous lawsuit against the City by a former employee in the Park's Department, Ester Steinman. Ms. Steinman contended that her termination was an illegal retaliation for complaining to Ralph Morton, the head of the Department, concerning misconduct by members of the Park Maintenance and Repair Crew. The City asserts she was fired for cause. Sadly, Ms. Steinman died from pancreatic cancer prior to trial, and the City agreed to a confidential settlement with her estate. You are interested in bringing the following portions of Ms. Steinman's existing deposition to preserve testimony, which had been noted and taken by her attorney, into Kenny's case to support and amplify your evidence claim. You believe that this transcript reveals a pattern of carelessness and indifference running all the way from the work crews to the head of the Department in which the Department head was fully on notice of behavior that was all but certain to result in harm to some child playing in the park.

138

SKILLS & VALUES: EVIDENCE

EXCERPT FROM DEPOSITION

Plaintiffs Attorney [PA]: Ms. Steinman, how was your complaint conveyed to the head of the Park's Department? Plaintiff [P]: I sent it to Mr. Morton by e-mail. What basically did you tell him in your PA: e-mail? P: It was quite long. Can I give you the gist? PA: Why don't we start with that and see.... What basically did your e-mail say? P: Okay. I said that the work crew was not doing their job. Defense Attorney [DA]: Objection. Best Evidence Rule ... She's talking about the content of the writing. Ms. Steinman, do you have a copy of the PA: e-mail you sent? No. It was on my computer, and our house P: was burglarized. They took everything - my computer, our stereo and television, jewelry ... everything. PA: So again. What did you say in your e-mail? I wrote that the crew responsible for P: repairing and maintaining public playgrounds was not at all doing their job. They were rushing through, doing shoddy quick fixes - duct tape for repairs you couldn't see, nails instead of bolts or fasteners stuff like that. PA: Can you tell us why they would do that? Sure. By doing that, they finished by noon P: everyday. Then they'd all go to one of their houses ... I think one with a swimming pool. Then they'd swim and play cards for the rest of the afternoon, and then rush back to the service lot at the end of their shift. PA: How do you know this? I've heard them laughing, talking about it. P: Everyone in the Department knows, even in accounting where I work. I mean, these guys come in at the end of their shift, and its 95° out with go% humidity. And they're not just dry, you can tell they've showered ... sometimes they've even changed shirts.

139

CH. 16

FORMER TESTIMONY

PA:

Did you ever hear back about your e-mail?

P:

Not in person or by phone, but I got an e-mail.

DA:

Same objection as before - Best Evidence. Also, lack of authentication as to the source of this mythical e-mail.

P:

It's no myth; I got it alright! ...

PA:

DA:

Okay, Ms. Steinman. Who did it appear to come from? Mr. Morton. Objection, Authentication.

PA:

Why do you say that?

P:

It had his e-mail address at the top - I recognized it.

PA:

And what did it say? That he would investigate my claims about misconduct in the Park Work Crew, that he would put the Department Assistant Director in charge of the investigation. And he thanked me - Big Thanks! They fired me!

P:

P:

Plaintiffs counsel. You know that if you try to bring this transcript into evidence in Kenny Hunter's trail, the City's attorney will scream "hearsay."* You plan to respond, "Former Testimony" [FRE 804(b)(1)].** Imagine the City's attorney making the argument that is posted to the LexisNexis Web Course that was created for this book. Write out your response to the City's argument.

• Issues concerning Authentication [FRE 901] and Best Evidence Rule [FRE regarding this transcript are covered in Chapter 17.

1001

et seq]

•• If you can meet this hurdle, you have a good shot at getting in all the contents: The e-mails are non-hearsay, relevant to state of mind and notice. The crew's statements are Party Agent Admissions [FRE 801 (d)(2)(c)]. The statement "everyone knew" is a bit dicer; but may be argued to be a literal statement of factual knowledge, or perhaps Lay Opinion [FRE 701]. And her own observations are admissible g the court finds the transcript satisfies FRE 804(b)(1).

140

SKILLS & VALUES: EVIDENCE

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

CH. 16

FORMER TESTIMONY

141

SELF-STUDY

The defense has a pretty good argument; but, Plaintiff still might be successful with an approach like the following: "Your Honor, the City plainly had a motive, similar to the current case, to examine Ms. Steinman's claims about the Park Crew. That they choose not to was, if anything, a strategic decision unrelated to the existence of a 'similar motive.' Let me explain. Defendants assert that Ms. Steinman was fired for cause, which had nothing to do with her e-mail. Now, if they could establish that the e-mail was baseless, a jury would likely question whether the City would have any reason to retaliate ... Retaliate for what? In such cases, the fact that the City was unlikely to retaliate, makes it more likely that the firing was the product of a good faith belief that there was cause. So, the City had the same motive to attack Ms. Steinman's claims as if would if presented in this case - though the ultimate use of the evidence may differ in the two cases; i.e., to undercut the claim of retaliation in Ms. Steinman's case, versus evidence supporting the claim of negligence and knowledge about the shoddy maintenance in ours. Their strategic choice not to attack Ms. Steinman's claims in her deposition does not alter that existence of that 'similar motive' under FRE 804(b)(1)." [Note, we haven't taken the City attorney's bait and argued that both cases involve "similar motives" because both involve shoddy work by the Parks Department. While that issue is central in Plaintiffs Hunter's case, it is mere coincidence as to Ms. Steinman; i.e., her complaint leading to her firing could have been about, e.g., expensive executive dinners, and her case would have been the same.]

Chapter 17 AUTHENTICATION AND THE BEST EVIDENCE RULE INTRODUCTION This chapter focuses on the requirement of Authentication for documents (FRE 901) and the Best Evidence Rule (FRE 1001 et seq.). "Authentication" of a document is often confusing for new lawyers as they believe that they must "prove" conclusively that the item they seek to admit contains only true information. It may be helpful to remember that genuine or "authentic" writings often contain untrue information, and yet they are still admissible as an "authentic" writing. After all, in a criminal case a forged check is admissible though everything written on the face of the check may be fraudulent. To "authenticate" a document or writing one need only show that it is what it purports to be. Most of the time a witness merely gets on the stand (or likely fulfils the authentication requirement as one part of their testimony) and states how they recognize the writing (recognizes handwriting, knows it's an Acme Co. memo form, having received hundreds at work over the years, and such) and that the writing is what is purports to be. To avoid needless waste of valuable court time it is common to raise and resolve authentication issues in limine before trial. Finally, some documents would take so much effort to falsify (a newspaper, soup can label) or be so unlikely to try to bring into court (a forgery of a certified public records) that you do not need a witness to meet the requirements of authentication; they are self-authenticating. FRE 902. Of course, the opposing party is still free to show the document is a fraud. In practice the "Best Evidence" rule requiring an original document is all but dead. Advances in photocopies, faxes, other forms of reproduction of writings, drawings, photograph, tapes, etc. have eliminated the possibility of error in transcription of the original which formed the basis for the Best Evidence rule. In general, FRE 1003 permits the admission of a duplicate unless the authenticity of the original is called into question. FRE 1004 then provides a wide list of exceptions (e.g., document destroyed in good faith) that permits secondary evidence of the contents of a writing, even if you don't even have a photocopy. 143

144

SKILLS & VALUES: EVIDENCE

EVIDENCE TOPIC: Authentication [FRE 901]; Best Evidence Rule [FRE 1001 et seq.] SKILLS INVOLVED: Culling a transcript for information to satisfy an evidentiary foundation; envisioning other information which would be helpful in satisfying a foundation; applying a Rule which consists of creating a story with circumstantial evidence [FRE 901(b)(1)] ("Distinctive Characteristics"); applying a Rule with clear, black-letter exceptions [FRE 1004]. ESTIMATED TIME FOR COMPLETION:

II 30 minutes

LEVEL OF DIFFICULTY (t TO 5):

••••

ROLE IN EXERCISE: You represent the Plaintiff, Kenny Hunter, in the "Swingset Case" [See, factual summary on page viii.] THE EXERCISE

Plaintiffs counsel. In the course of your investigation you found out about a previous lawsuit against the City by a former employee in the Park's Department, Ester Steinman. Ms. Steinman contended that her termination was an illegal retaliation for complaining to Ralph Morton, the head of the Department, concerning misconduct by members of the Park Maintenance and Repair Crew. The City asserts she was fired for cause. Sadly, Ms. Steinman died from pancreatic cancer prior to trial, and the City agreed to a confidential settlement with her estate. You are interested in bringing the following portions of Ms. Steinman's existing deposition to preserve testimony, which had been noted and taken by her attorney, into Kenny's case to support and amplify your evidence claim. You believe that this transcript reveals a pattern of carelessness and indifference running all the way from the work crews to the head of the Department in which the Department head was fully on notice of behavior that was all but certain to result in harm to some child playing in the park.

CH. 17

AUTHENTICATION AND THE BEST EVIDENCE RULE

145

EXCERPT FROM DEPOSITION

Plaintiffs Attorney [PA]: Ms. Steinman, how was your complaint conveyed to the head of the Park's Department? Plaintiff [P]: I sent it to Mr. Morton by e-mail. PA: What basically did you tell him in your e-mail? P: It was quite long. Can I give you the gist? PA: Why don't we start with that and see .... What basically did your e-mail say? P: Okay. I said that the work crew was not doing their job. Defense Attorney [DA]: Objection. Best Evidence Rule ... She's talking about the content of the writing. PA: Ms. Steinman, do you have a copy of the e-mail you sent? P: No. It was on my computer, and our house was burglarized. They took everything - my computer, our stereo and television, jewelry ... everything. PA: So again. What did you say in your e-mail? P: I wrote that the crew responsible for repairing and maintaining public playgrounds was not at all doing their job. They were rushing through, doing shoddy quick fixes - duct tape for repairs you couldn't see, nails instead of bolts or fasteners stuff like that. PA: Can you tell us why they would do that? P: Sure. By doing that, they finished by noon everyday. Then they'd all go to one of their houses ... I think one with a swimming pool. Then they'd swim and play cards for the rest of the afternoon, and then rush back to the service lot at the end of their shift. PA: How do you know this? P: I've heard them laughing, talking about it. Everyone in the Department knows, even in accounting where I work. I mean, these guys come in at the end of their shift, and its 95°

146

PA:

P: DA:

P: PA:

P: DA: PA:

P: PA: P:

SKILLS & VALUES: EVIDENCE

out with go% humidity. And they're not just dry, you can tell they've showered ... sometimes they've even changed shirts. Did you ever hear back about your e-mail? Not in person or by phone, but I got an e-mail. Same objection as before - Best Evidence. Also, lack of authentication as to the source of this mythical e-mail. It's no myth; I got it alright! ... Okay, Ms. Steinman. Who did it appear to come from? Mr. Morton. Objection, Authentication. Why do you say that? It had his e-mail address at the top I recognized it. And what did it say? That he would investigate my claims about misconduct in the Park Work Crew,- that he'd put the Department Assistant Director in charge of the investigation. And he thanked me- Big Thanks! They fired me!

Plaintiffs Counsel. You know that if you try to bring this transcript into Kenny's case, you will face the same Authentication [FRE 901] and Best Evidence [FRE 1001 et seq] objections as were raised in the deposition.* (1)

Authentication exercise. You are going to have to authenticate the alleged e-mail from Mr. Morton to Mrs. Steinman. (a) Examine the transcript of the examination of Mrs. Steinman with an eye to finding testimony that would tend to support your proposition that the "e-mail" in question actually was authored by Mr. Morton, head of the Park's Department. Write out each part of testimony that you think supports your theory and explain why you believe it shows the e-mail was authored by him.

·Issues of former testimony [FRE 804 (l-)(t)] are dealt with in Chapter 16.

CH. 17

AUTHENTICATION AND THE BEST EVIDENCE RULE

(b)

147

List the pieces of information (which may or may not exist) that you would now look for in investigation that would tend to authentic the e-mail as coming from Ralph Morton. (2) Best Evidence exercise. You must decide whether there is a Best Evidence objection that might be sustained with regard to the Morton e-mail. (a) Is there a writing under FRE 1001? (b) If you conclude there is a writing, must you be able to produce the original e-mail? See FRE 1002, 1003, 1004. What form does an original e-mail take? See FRE 1001. (c) Can the evidence of the alleged e-mail and its contents be proven even though Mrs. Steinman says that her computer was stolen? See FRE 1004.

148

SKILLS & VALUES: EVIDENCE

DO NOT PROCEED TO THE NEXT PAGE UNTIL YOU HAVE COMPLETED THE EXERCISE

CH. 17

AUTHENTICATION AND THE BEST EVIDENCE RULE

149

SELF-STUDY

(1) Authentication; we thought the best bet is to put together bits and pieces and argue a reasonable juror "could" find the e-mail was authored by Morgan based upon these "distinctive characteristics"; i.e., circumstantial evidence. [FRE 901(b)(4) -"Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics or circumstances, taken in conjunction with circumstances."] (a) From transcript • Morgan's e-mail address on "from" line • E-mail responds to topic of Ms. Steinman's original e-mail to Morgan (i.e., Reply Doctrine). • The E-mail proposes action consistent with being from the head of the Department (i.e., delegating a significant task to the Department's second in command). (b) Information to seek in an investigation • Evidence that Morton took subsequent action consistent with e-mail exchange. (e.g., delegating someone to investigate Ms. Steinman's complaint.) • Evidence that Morton told someone about receiving Ms. Steinman's e-mail. • Unique (to Morton) expressions, language choice, etc. • e-mail on Morton's letterhead. • e-mail "signed" with Morton's name. (2) Best Evidence Rule [FRE 1001 et seq.] Given Ms. Steinman's story about the burglary, the Best Evidence Rule would not be a bar to offering "secondary evidence" regarding the content of the two e-mails. See, FRE 1004(1) "The original is not required, and other evidence of the contents of a writing, ... is admissible if - (1) originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith .... " Note, if the defendant argues that no such e-mail ever existed, the jury would hear all the evidence on the matter and decide the issue under FRE 1008.