Check Sound Check Mike

1. Check Sound Check Mike Time

2. Today’s Lecture: The Game of Evidence: Relevance and Hearsay 1. The “Rule” of Relevance 2. The Game of Hearsay

3. Lecture Organization: • Class Announcements • Brief Review • Introduction to the Rules of Evidence • Relevance • Hearsay Time

4. Class Announcements 1. Next quiz will be posted this week (stay tuned) 2. no class on Thursday 3. Here We Go Steelers … Questions? Time

5. Review • 1. Witnesses • -- lay and expert • -- basic objections to the form of the question • (narration, leading, argumentative, foundation, cumulative, etc.) • -- good technique for framing questions on direct examination • -- good technique for framing questions on cross examination

6. Review • 2. Privileges • -- attorney/client, husband/wife, doctor/patient • 3. The evidence game • -- objections had to be prompt and state the basis or were considered “waived” (as a general rule) • 4. Impeachment • -- suggesting the witness is lying rather than mistaken Time

7. Introduction to the Rules of Evidence 1. Last time, I showed you the hurdles of evidence 2. We have already finished two of them …

8. Evidence Hurdles Witnesses Privileges Relevance Hearsay You have to pass all of the hurdles to have “good evidence” (evidence that is not excluded) Type of; Form of questioning Good versus bad issues “Secrets” Gossip? Time

9. Relevance • 1. An extremely important concept • -- central to the whole venture • -- people are tried only upon relevant evidence • 2. Let’s take a look at how “relevance” is defined by the rules of evidence … Question: In a domestic battery case where self defense is claimed, is it relevant that the defendant is (a) an alcoholic; or (b) convicted of domestic abuse in the past? Question: In a burglary case where the defense is alibi, is it relevant that the person has committed burglary before – say, 3 years earlier? Question: What is relevant evidence? How might we define this concept? Question: In a rape case where the defense is consent, is it relevant that the victim is promiscuous?? Question: In an auto accident, is it relevant that the negligent driver has good insurance?

10. Definition has two parts … 1 2 Any tendency to make a material fact more or less likely Unless it is … confusing prejudicial misleading waste of time cumulative

11. Definition has two parts … BASIS Anti-Basis 1 2 Any tendency to make a material fact more or less likely Unless it is … confusing prejudicial “Logic reasoning” FAIRNESS misleading probability waste of time induction cumulative “math”

12. Hypothetical: • -- imagine that there is a gruesome murder. • -- let’s say its particularly disgusting • (head is torn off, blood everywhere, anatomy mutilated, etc.) • -- and let’s make the victim particularly vulnerable • (e.g., an 8th grade girl) • -- prosecution has gruesome photos of the dead body. • -- They show up close shots of the mutilated anatomy. They show decapitation. They are simply disgusting BASIS Anti-Basis 1 2 Any tendency to make a material fact more or less likely Unless it is … confusing prejudicial “Logic reasoning” FAIRNESS misleading probability waste of time induction cumulative “math”

13. Hypothetical: • -- let’s say that there are 50 photos showing different angles of the blood body, different sorts of wounds and contusions, etc. • -- imagine that the defendant charged with the crime is a drifter with no connection to the community • (e.g., a homeless type, only dangerous looking) BASIS Anti-Basis 1 2 Any tendency to make a material fact more or less likely Unless it is … confusing Question: Are the pictures relevant evidence? That is, if the defense counsel objects, would you, the judge, allow them into evidence? prejudicial “Logic reasoning” Question: What effect are the pictures going to have on Edith? FAIRNESS misleading probability waste of time induction cumulative “math”

14. What do the photos prove? How are the photos unfair? 1. a violent murder occurred 1. cumulative 2. prejudicial 2. it happened in a particular way “Over-probative” -- they make the jury prone to convict anyone within their reach

15. Prosecution Arguments: • -- each show different things. • the depth of the knife wound • The angle of entry (he was standing behind her) • Post mortem mutilation What do the photos prove? How are the photos unfair? 1. a violent murder occurred 1. cumulative 2. prejudicial 2. it happened in a particular way “Over-probative” -- they make the jury prone to convict anyone within their reach

16. Prosecution Arguments: • -- not prejudicial because: • they only depict reality – this is what really happened, Judge. Truth can’t be prejudice What do the photos prove? How are the photos unfair? 1. a violent murder occurred 1. cumulative 2. prejudicial 2. it happened in a particular way “Over-probative” -- they make the jury prone to convict anyone within their reach

17. Defense Arguments: What do the photos prove? How are the photos unfair? -- Just show drawings (everything you need can be introduced with 50 different drawings) -- “Stipulation” “Judge, we will stipulate that a violent murder occurred in the way that are theorized by the photos.” (If accepted, that fact is no longer material) 1. a violent murder occurred 1. cumulative 2. prejudicial 2. it happened in a particular way “Over-probative” -- they make the jury prone to convict anyone within their reach

18. Deepest Question: Or is all that exists here is something that allows the judge to say he/she followed the “rule” no matter how many pictures, if any, are let in? Is it not a rule but a cloak? Question: Who does the RULE say should win? Does LAW provide an answer? Deeper Question: Is there a rule here at all?? BASIS Anti-Basis 1 2 Any tendency to make a material fact more or less likely Unless it is … confusing prejudicial “Logic reasoning” misleading probability waste of time induction cumulative “math”

19. Hearsay 1. Hearsay is the last important evidentiary concept I will show you 2. We’ve already seen that it is the last hurdle you have to cross Question: Why do we need a hearsay rule? What’s the problem?

20. The rationalization for banning hearsay Person A Person B Light blue box = the statement without access to the foundation Yellow box = the stuff that is the foundation of the statement Event, X Cross examination will focus upon the person’s foundation (5-senses) and upon impeachment (motive to misrepresent) Now you can’t get at Person A’s foundation or motives. They are lost.

21. The rationalization for banning hearsay Person A Person B Event, X Examples “ My doctor is always over- prescribing” “ Gosh, how terrible. Aren’t you worried?”

22. The rationalization for banning hearsay Person A Person B Event, X Examples “ He is a liar and he cheats” “Wow. Amazing”

23. Hearsay • 3. The actual hearsay rule is especially complicated • -- Basic structure • (a) – DEFINES hearsay for you [not allowed] • (b) – tells you what is NOT hearsay [allowed in]. • (c) – then tells you what is PERMISSIBLE hearsay [allowed in] • -- result: sometimes blue-box stuff will be allowed; sometimes only yellow-box stuff will be. illustration Hearsay Acceptable Hearsay Not Hearsay

24. Hearsay • 1. Out of Court Statement • 2. Offered for its Truth • 1. Witnesses prior statements IF: • (a) made under oath, at a proceeding, subject to perjury; or • (b) at a deposition Basic Definition Not Hearsay Prior testimony

25. Hearsay • 2. Party Admission • [airplane example -- “God Dammit, negligent again!”] • [Laci Peterson, hypothetical]. “He said he killed her” • ... This stuff is considered “not hearsay at all” • -- yellow box stuff that is simply “trustworthy enough” for someone else to repeat: • present sense impression • -- narrates “sense data” Permissible Hearsay Cell phone communication: “wow are we going fast Cell phone … “boy this concert is really loud”

26. Hearsay • excited utterance • -- involves excitement • state of mind, body • -- narrating something phenomenal • future intent • -- you are declaring what you will do in the future • medical diagnosis • -- whatever you tell your doctor that is reasonable for medical diagnosis Cell phone … “Oh my god we are going to wreck! 911 calls “I have a good buzz” “I feel pain in my back” “I’m going to kill him” “Where did you get these marks?” “He beat me last night”

27. Hearsay • community reputation • -- note that this is based upon all kinds of hearsay upon hearsay. It is based upon what we might call second-hand “sentiment.” • business record • -- kept in the “ordinary course” [explain], but not a police report. • certain public records – • -- records of deeds, previous condition “He is a known cheat and a liar” Medical records

28. Hearsay • unavailable declarant: • -- former testimony, dying declaration, or statements against interest • -- there is still one other exception (by the way, we haven’t done them all. I think there are 24 or so exceptions). • -- the last one is … • OTHER! • -- basic idea: sufficiently trustworthy & reasonable to use Trafficante’s death bed confession of killing Kennedy Question: What kind of rule is this!? Time