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Evidence Outline - Professor Tilly - Campbell Law - Part 1

Evidence Outline - Professor Tilly - Campbell Law - Part 4

By Miller Moreau
Professor Tilly - 2020

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IV. Preliminary Questions

FRE 104. Preliminary Questions of Fact:

In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible . In so deciding the court is not bound by evidence rules , except those on privilege.
Relevance That Depends on a Fact. When the relevance of evidence depends on fulfilling a factual condition, the court may admit it on, or subject to, the introduction of evidence sufficient to support a finding that the condition is fulfilled.
Matters that the Jury May Not Hear. A hearing on a preliminary question must be conducted outside the jury’s hearing if:
1. The hearing involves the admissibility of a confession .
2. A defendant in a criminal case is a witness and requests that the jury not be present; or
3. Justice so requires.

A) In General

Standard is preponderance of the evidence, judge is not bound by evidence rules
Applies to foundational issues other than relevance
- I.E. – whether statement was dying declaration; expert qualifications; whether a witness is actually unavailable
When judge is making this decision- not bound by any other evidence rules except for those on privilege
- But- privilege does not prevent judge from determining if privilege exists in the first place

B) Conditional Relevance

Can be introduced on the condition that the proof is introduced later
If doesn’t become relevant → can renew objection, then strike the conditionally admitted evidence and give curative instructions
- “Sufficient to support” is very low standard
Effectively gives jury the issues that go only to relevance
- But- somehow this same standard is used for 404(b) (crimes wrongs, other acts) → some dumbass prosecutor won big and now we’re stuck with this ass backwards logic but the law is the law
  - (Huddleston) fact that previous crime happened in the first place, not preponderance of the evidence but rational juror basis
I.E. – district court determined it was not convinced voice on the telephone was somebody’s & excluded it as irrelevant → erred without making a finding that no rational juror could have concluded that D made the statement at issue

Feaster v. US, Trial court skipped question of witness’s availability and went straight to assess his credibility when excluding his testimony → reversible error

104(a) does not permit a trial judge to usurp the jury’s function and exclude the evidence based on the judge’s determination that it lacks persuasive force

V. Hearsay

FRE 801. Hearsay is a prior statement the declarant made not while testifying at the current trial or hearing that a party offers in evidence to prove the truth of the matter asserted

Analysis

Is there a statement?
Who was the declarant?
Was it made “not while testifying at this trial or hearing”
Is it offered to prove the truth of the matter asserted?

1) Statement

Action of declaring or positively stating
- Oral or written assertion; or
- Nonverbal conduct if the person intended it as an assertion
  - I.E. – pointing “he went that way”
  - I.E. – shaking umbrella at porch during rain doesn’t assert that it’s raining, but if asked first then shake umbrella back at the person → it’s conduct asserting the fact that it’s raining
Questions are generally not an assertion unless they set forth some factual matter
- I.E. – “why is he wearing a yellow jacket” → hearsay
Command is generally not an assertion even if you can imply a fact exists from it
- United States v. Zenni, “can I place a bet on _____” implies that this person thinks they’re talking to a bookie → doesn’t assert a statement
  - Person must intend to assert the fact itself
  - I.E. – “this is a place of gambling” would be assertion
  - Rationale: sincerity is not involved, rarely in our own actions do we deceive ourselves
CONDUCT NOT INTENDED AS AN ASSERTION IS NOT HEARSAY
- Can use extrinsic evidence to figure out intention of declarant

2) Declarant

Person who made the statement
- Not animal or machine
  - But- would be hearsay if person interpreting machine “ie- it’s 2 o’clock”
- Often the same as the witness, but not necessarily

3) Not testifying at this trial or hearing

Must be under oath at THIS trial or hearing
- If prior case? → hearsay, even if it was under oath

4) Offered to Prove Truth of Matter Asserted

Must the facts asserted in the statement be true for the statement to be relevant ? (hearsay)
- OR does the evidentiary value of the statement derive from the mere utterance of the words themselves rather than their factual accuracy (not hearsay)
- If it HAS to be true to be relevant → hearsay

Common “Not for Truth” Purposes

Legally binding statements (acts of independent legal significance)
1. Law assigns significance to the utterance of words themselves
  1. Words don’t just “say” something they “do” something. Must be the actual words “doing dat thing” doe
    1. I.E. – B to me: “I’ll buy your lawnmower for 500” → fine
      1. But B to someone else: “I offered Ben $500 for his lawnmower” → hearsay, this wouldn’t be the actual formation of the contract itself
      2. I.E. – oral contracts, slander, threats, perjury
Publication
1. The FACT of what was published, not the truth of what it contains
  1. Fact and effect
2. I.E. – proving libel case, P offers evidence of copy of newspaper → not hearsay
  1. But- if P testifies “Zed told me the article said xyz” → hearsay
Mere fact that words were spoken
1. I.E. – “I’m alive” → no shit
  1. But, ex.- Plaintiff, a widow, brings a wrongful death and survival claim against the driver of an 18 wheeler who swerved over the center line killing her husband. At the scene, the deceased told the responding officer, “Tell my wife, ‘I love her.’” A few hours later, the officer delivers the news of his death and last words to the plaintiff. At trial, the defense claims plaintiff is not entitled to pain and suffering damages in the survival claim because the wreck killed the decedent instantly. To prove conscious pain and suffering, the plaintiff seeks to testify to the officer’s news → this is hearsay because the officer is the declarant in this case, so what he’s telling the wife is offered for its truth regardless of whether the husband actually “loved her” or not
Effect on the listener
1. To show the effect on the listener to demonstrate the reason for their subsequent action as a result of the statement
  1. I.E. – D was told “V is sleeping with your wife” before going and killing him
Notice to the listener
1. I.E. – Mechanic tells person “you need new brakes” may be offered not about whether the defect existed but if the person acted as a reasonable person
Knowledge of the speaker
1. Regardless of truth- his knowledge whether it is correct or not
2. I.E. – patient saying “I’m worried about this surgery, the risk is pretty high”
  1. If offered to prove high risk → hearsay
  2. If offered to prove informed consent → not hearsay
Circumstantial evidence of the declarant’s state of mind
1. “Cyclists are morons”, “I’m Elvis” → doesn’t matter if true or not, not hearsay
  1. But “I hate cyclists”, “I believe I’m Elvis” → hearsay b/c direct evidence

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