Burden of Persuasion Generally 7 Sentencing Guidelines 9

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Burdens 6

Burden of Persuasion Generally 7

Sentencing Guidelines 9

Presumptions 11

Criminal Presumptions  Really permissible Inferences 13

Hearsay 14

Categories of statements for non-hearsay 16

Prior Statements 19

Prior Reported Testimony 22

Admissions 24

Hearsay Exceptions 27

Declaration Against Interest 28

Spontaneous, Contemporaneous and Excited Utterances 30

Physical or Mental Condition of Declarant 31

Labor racketeering for $200 32

5 Statements 32

1. We are going to enforce the contract, not a social call, picked up envelope 32

picking up envelope is fine, witness testimony 32

not a social call, enforcing contract – admission against interest made by D 32

as measured when made 32

2. Annunziata asks if anyone is here to see him, told he is on his way, goes into trailer 32

admission 32

3. President tells assistant to take envelope to New Have to fulfill commitment 32

President dead before trial 32

Shows that envelope traveled, but does not prove contents 32

4. President tells bookkeeper to take $300, put it in envelope and give to Mayhew in order to pay someone on the job 32

forward looking – Hillmon 32

5. Son testifies that president told him that Annunziata wants a payoff, so I am going to have to pay him $250 32

extension of Hillmon – forward looking statement accompanied by an explanation from the very recent past, 32

moving Hillmon from civil to criminal case 32

could also try to get it in on a co-conspirator theory 32

un-indicted co-conspirator 32

made in furtherance of conspiracy 32

But, would have to establish the conspiracy by something more than the statement 32

Non-testimonial Hillmon, co-conspirator, both of which fall outside of Scalia’s definition of the ocnfrontatin clause 32

Crawford – pulls out confrontation safety net, need to look at evidence rules more closely 32

Business Entries and Public Records 33

Refreshing Recollection – Present Recollection Refresh 33

Rule 612 33

Steps 33

1. Establish that witness has forgotten 33

2. Mark document for identification, or have it admitted to evidence 33

3. Show it to the witness 33

adversary also gets to see it 33

4. Is you memory refreshed? 33

5. Take back the document. 33

6. Do you remember? 33

Issue: Does this actually refresh recollection or create new memory? 33

Past Recollection Recorded 33

FRE 803.5 33

Severe Restrictions 33

Persondoesnt’t remember 33

Nothing can refresh recollection 33

Did there ever come a time when you did know? 33

Did you do anything? 33

I wrote it down, etc. 33

How long was it after you saw that you recorded? 33

Must show it was fairly immediate, when knowledge was fresh 33

Was your recording accurate? 33

Then you mark paper for ID 33

Show it to witness 33

Witness identifies it 33

Read paper 33

Only time you can read something into evidence when it is not in evidence 33

Can’t admit actual piece of paper 33

Why not? 33

Exception, 33

should be treated conservatively 33

Power of Paper 33

Remember more of what you see and touch than what you hear. 33

FRE 803(6) 34

Requirements 34

Record 34

Made or transmitted at time of occucrence 34

By Person with knowledge 34

Made in the regular course of business 34

Kept in the ordinary course of business 34

Miscellaneous Exceptions 36

Constitutional Considerations 37

Circumstantial Evidence 39

Raw Probability 39

Circumstantial evidence 39

Inferential reasoning 39

Traditiaonlly disfavored, could not rest criminal conviction on circumstantial evidence alone 39

Neuborne: False dichotomy 39

Spectrum of probability based on how likely evidence is telling us something meaningful about what we are trying to prove 39

Circumstnatial evidence charge would result in acquittals mso tof the time it is given, but does not actually happen because juries ignore it 39

Reliance on statistics 39

Purest of circumstantial evidence 39

Information about a group that an individual belongs to 39

Could be actually an incorrect association – easy to deal with 39

Ignore it 39

But, What if group statistics are accurate? 39

Life expectancy based on race or gender 39

Raises issues for life insurance premiums, pension payments 39

Higher for blacks because they will collect sooner 39

Lower for women because they will collect for longer 39

Issues 39

Causation and correlation 39

Forward looking 39

Backward looking? 39

How fine a group to you draw? 39

Bright line between future and past 39

Reasons to Use Statistics 39

Predictive Judgment 39

How long will someone live? How will a juror vote? 39

Neuborne: strongest argument 39

Commonly used, except when it violates our right to determine our own sense of self 39

Motive for past Action 39

Crime was racially motivated 39

Deviation from statistical norm to infer racially biased action 39

Causation of past action 39

Harder 39

Pharmaceutical suits 39

Correlation between taking a drug and existence of birth defects 39

Can you use statisticl correlation to satisfy production burden so you can reach the jury? 40

Otherwise Judge will dismiss the case 40

Issue with correlation not being the cause. 40

Proof that past act actually occurred 40

Hardest 40

Hillmon 40

Can’t use hearsay to say what happened in the past 40

Evidence of prior Wrongdoing 41

Risks 41

1st Level: If they hunker down and don’t say anything, risk that past will come to haunt them 41

2nd Level: If testify, what level of risk is there with past coming out in cross? 41

3rd level: when defendant opens door 41

tries to use past to help him/her 41

Character Evidence 43

Prior Similar Acts 44

C in Mimic: common course of Conduct 44

Dallas Railway 44

Evidence of behavior on the same ride was allowed in because it was all part of the same conduct 44

Johnson v. Elk Lake 44

Prior alleged sexual assault properly kept out because of uncertainty regarding intentionality, dissimilarities between acts, and isolated nature of incident 44

Habit and Custom 45

Halloran v. Virginia Chemicals 45

Ok to admit evidence of habit when using Freon 45

Issue of impeachment 45

You can’t prove impeachment for collateral fact 45

This is not a collateral fact 45

Can only impeach with habit testimony 45

Not a general showing of character 45

Actual specific behavior 45

Need to connect and have sufficient quantity 45

Neuborne: doesn’t seem to be difference between civil and criminal standard for this in the rules of evidence 45

Evidence Outline

  • Model of Law

    • Syllogism

      • Major premise: rule of law

        • Determined by substantive law

        • To be discovered

      • Minor Premise: facts

        • Objective reality to be discovered.

        • Domain of Evidence law: figuring out the minor premise

          • Must assume:

            • Objective reality exists, and

            • Knowable by humans

      • Hard to close the syllogism with certainty

    •  use burdens of proof and production to manage uncertainty and deflect error.

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