Evidence - Carolina Academic Press1).pdf · Hearsay: Rule Deconstruction 233 A. The Hearsay Declarant ... Hearsay Quiz 251 CONTENTS xiii 00 c 2 6/20/17 10:32 AM Pa . II. The Hearsay

Evidence

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Carolina Academic Press Context and Practice SeriesMichael Hunter Schwartz

Series Editor

Administrative LawRichard Henry Seamon

Advanced TortsAlex B. Long and Meredith J. Duncan

Animal Law—New Perspectives on Teaching Traditional LawKathy Hessler, Joyce Tischler, Pamela Hart, and Sonia S. Waisman

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A Context and Practice Global Case File: Rossi v. Bryce, An International Embryo and Surrogacy Dispute

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Criminal LawSteven I. Friedland, Catherine Carpenter, Kami Chavis, and Catherine Arcabsacio

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Employment Discrimination, Second EditionSusan Grover, Sandra F. Sperino, and Jarod S. Gonzalez

Energy LawJoshua P. Fershee

Evidence, Second EditionPavel Wonsowicz

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Your Brain and Law SchoolMarybeth Herald

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Evidence

A Context and Practice Casebooksecond edition

Pavel WonsowiczUCLA School of Law

Carolina Academic PressDurham, North Carolina

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Copyright © 2017Pavel Wonsowicz

All Rights Reserved

ISBN 978-1-5310-0703-4LCCN 2017945200

e-ISBN 978-1-53100-704-1

Carolina Academic Press, LLC700 Kent Street

Durham, NC 27701Telephone (919) 489-7486

Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

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To Joy,All the other stars seem dim around you.

To Eva and Charles,Deep in their roots, all flowers keep the light.

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Contents

Table of Principal Cases xixSeries Editor’s Preface xxiPreface and Acknowledgments xxiii

Chapter 1 · An Introduction to Evidence 3I. Introduction 3

The Staircase 4State v. Peterson 4

II. The Anatomy of a Trial 7III. Witnesses 10

A. Competency 11Problem 1-1 12Problem 1-2 12

B. Personal Knowledge 13Problem 1-3 14

C. Oaths and Affirmations 15Problem 1-4 15

IV. The Role of the Jury 16Focus Questions: Tanner v. United States 17Tanner v. United States 17Focus Questions: Pena-Rodriguez v. Colorado 24Pena-Rodriguez v. Colorado 25

V. Shortcuts to Proof 33A. Stipulations 33B. Judicial Notice 33

Problem 1-5 35Problem 1-6 36

C. Burden of Proof and Presumptions 36Problem 1-7 40

Professional Development Questions 41

Chapter 2 · Relevance 43I. Is It Relevant? 46

Overview Problem 46Defining Relevance 46

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The Judge’s Role in Determining Relevance 48Another Way of Examining Relevance: The Evidential Hypothesis 48

Problem 2-1 49Problem 2-2 49Case Excerpt: Prosecution Brief in State v. Peterson 50State v. Peterson 52Focus Questions: United States v. Figueroa

and Hicks v. Commonwealth of Kentucky 53United States v. Figueroa 53Hicks v. Commonwealth of Kentucky 59Focus Questions: United States v. James 61United States v. James 61Problem 2-3 65Problem 2-4 65

II. Is There a Conditional Relevance Objection? 66III. Even If It Is Relevant, Is It Too Prejudicial? 68

Problem 2-5 70Case Excerpt: Prosecution Brief in State v. Peterson 71State v. Peterson 73Problem 2-6 75Problem 2-7 75

IV. Can the Evidence Be Stipulated? 75Focus Questions: Old Chief v. United States 76Old Chief v. United States 76


Chapter 3 · The Specialized Relevance Rules 89Overview: Tilting the Playing Field 89I. Is It a Subsequent Remedial Remedy? 91

Overview Problem 91(1) Policy Underpinnings 91(2) Elements 92(3) Exceptions 93Focus Questions: Wood v. Morbark Indus., Inc. 93Wood v. Morbark Industries, Inc. 94Problem 3-1 99Problem 3-2 99

II. Is It Evidence of a Compromise? 99Overview Problem 100(1) Policy Underpinnings 100(2) Elements 100(3) Exceptions 101Focus Questions: Bradbury v. Phillips Petroleum Co. 101Bradbury v. Phillips Petroleum Co. 101Problem 3-3 106Problem 3-4 107Problem 3-5 107

III. Is It a Payment of Medical Expenses? 107Overview Problem 108

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(1) Policy Underpinnings 108(2) Elements 108(3) Exceptions 108Problem 3-6 108

IV. Is It a Plea or Plea Discussions? 109Overview Problem 109(1) Policy Underpinnings 109(2) Elements 110(3) Exceptions 110Problem 3-7 111

V. Is It Evidence of Insurance? 112Overview Problem 112(1) Policy Underpinnings 112(2) Elements 112(3) Exceptions 112Focus Questions: Williams v. McCoy 113Williams v. McCoy 113Problem 3-8 116


Chapter 4 · Character Evidence: Propensity Reasoning That Is Not Based on Character 119

I. FRE 404(b) 119Overview Problem 119

A. Character-Propensity Reasoning 120B. Evidential Hypotheses that Avoid Character-Propensity Reasoning 123C. The Introduction of Evidence Pursuant to FRE 404(b) 124

Focus Questions: People v. Zackowitz 126People v. Zackowitz 126Problem 4-1 129Problem 4-2 130Focus Questions: State v. Peterson 131State v. Peterson 131Problem 4-3 138Problem 4-4 139Problem 4-5 139Problem 4-6 140Focus Questions: United States v. Robinson 141United States v. Robinson 141Problem 4-7 146Problem 4-8 147Focus Questions: United States v. Hernandez 148United States v. Hernandez 148Problem 4-9 152Problem 4-10 153Problem 4-11 153

II. Habit Evidence 154Focus Questions: Reyes v. Missouri Pacific R.R. 155Reyes v. Missouri Pacific R.R. Co. 155

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Problem 4-12 157Professional Development Questions 157

Chapter 5 · Exceptions to the Character-Propensity Ban 159I. “Opening the Door” to Character in Criminal Cases 160

Overview Problem 160A. Proving Character Under FRE 404(a)(1) and 404(a)(2) 161

1. What Type of Evidence? 1612. Who May Introduce and How May It Be Rebutted? 1613. What Process Must Be Followed? 162

B. The Role of FRE 405(b) 164C. Conclusion 165

Focus Questions: Broyles v. Commonwealth 166Broyles v. Commonwealth 166Problem 5-1 167Problem 5-2 168Problem 5-3 168Focus Questions: United States v. Gilliland 169United States v. Gilliland 169Problem 5-4 171Problem 5-5 172Problem 5-6 172

II. FRE 413–415: Sexual Assault and Child Molestation 173Overview Problem 174Focus Questions: United States v. LeCompte 176United States v. LeCompte 176Focus Questions: United States v. Guardia 178United States v. Guardia 178Problem 5-7 183Problem 5-8 183Problem 5-9 183Problem 5-10 183


Chapter 6 · Impeachment 185Overview 185I. Impeachment by Attacking General Trustworthiness 186

A. Bias 186Overview Problem 186Focus Questions: United States v. Abel 187United States v. Abel 187

B. Defect in Capacity 191Overview Problem 191Focus Questions: Henderson v. DeTella 192Henderson v. DeTella 192

C. Character for Untruthfulness 1931. Calling a Character Witness 193Overview Problem 1942. Cross-Examining a Witness Regarding Non-Conviction Misconduct 195Overview Problem 195

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Focus Questions: State v. Morgan 196State v. Morgan 196Problem 6-1 2003. Cross-Examining a Witness Regarding the Witness’s Convictions 200Overview Problem 201Focus Questions: United States v. Brewer 204United States v. Brewer 205Problem 6-2 208Problem 6-3 209

II. Impeachment to Cast Doubt on Specific Testimony 209A. Demonstrating Prior Inconsistent Statements 209

Overview Problem 210Focus Questions: United States v. Winchenbach 211United States v. Winchenbach 211

B. Contradicting a Witness on Cross or Through Extrinsic Evidence 214Overview Problem 214Focus Questions: United States v. Opager 215United States v. Opager 215

III. Final Thoughts on Impeachment 217IV. Rape Shield Law 218

Overview Problem 219Focus Questions: Doe v. United States 221Doe v. United States 221Focus Questions: Stephens v. Miller 223Stephens v. Miller 223Problem 6-4 228Problem 6-5 229


Chapter 7 · Hearsay 231I. Unraveling Hearsay 231

Overview Problem 231Hearsay: The Quest for Reliable, Accurate Information 232Hearsay: Rule Deconstruction 233

A. The Hearsay Declarant 234B. For the Truth of the Matter Asserted 234C. The Hearsay Statement 236

1. Assertive Conduct as a “Statement” 2362. Oral and Written Communication as a Statement 237

D. Mini-Review 239Focus Questions: United States v. Parry 240United States v. Parry 241Focus Questions: State v. Galvan 242State v. Galvan 243Focus Questions: United States v. Long 245United States v. Long 245Focus Questions: State v. Dullard 246State v. Dullard 246Hearsay Quiz 251

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II. The Hearsay Exemptions 253Introduction 253A. Prior Statements of Testifying Witnesses 254

1. Prior Inconsistent Statements 254Problem 7-1 256Problem 7-2 2562. Prior Consistent Statements 257Focus Questions: Tome v. United States 258Tome v. United States 258Problem 7-3 263Problem 7-4 264Problem 7-5 2643. Statements of Identification 265Focus Questions: United States v. Owens 265United States v. Owens 266

B. Admissions by Opposing Parties 2671. Individual Admissions 267Problem 7-6 2672. Adoptive Admissions 268Problem 7-7 269Problem 7-8 270Problem 7-9 270Problem 7-10 2713. Statements of Agents 272Focus Questions: Mahlandt v. Wild Canid Survival

& Research Center, Inc. 272Mahlandt v. Wild Canid Survival & Research Center, Inc. 273Problem 7-11 276Problem 7-12 276Problem 7-13 2774. Coconspirator Statements 278Focus Questions: Bourjaily v. United States 279Bourjaily v. United States 279Problem 7-14 283Problem 7-15 283

III. The FRE 803 Exceptions 285A. Present Sense Impressions and Excited Utterances 285

Problem 7-16 286Problem 7-17 287Problem 7-18 287Problem 7-19 288Problem 7-20 288

B. Then-Existing Mental, Emotional, or Physical Condition 289Focus Questions: Mutual Life Ins. Co. v. Hillmon 290Mutual Life Ins. Co. v. Hillmon 290Focus Questions: United States v. Houlihan 293United States v. Houlihan 293Problem 7-21 296Problem 7-22 296

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C. Statements for Medical Diagnosis or Treatment 297Focus Questions: United States v. Iron Shell 298United States v. Iron Shell 298Problem 7-23 302Problem 7-24 302Problem 7-25 302

D. Writing to Refresh Memory/Recorded Recollection 303Focus Questions: Baker v. State 304Baker v. State 305Problem 7-26 308

E. Business Records 309Focus Questions: United States v. Kim 311United States v. Kim 311Focus Questions: Scheerer v. Hardee’s 315Scheerer v. Hardee’s Food Systems, Inc. 315Problem 7-27 317Problem 7-28 317Problem 7-29 317

F. Public Records 318Focus Questions: Beech Aircraft Corp. v. Rainey 319Beech Aircraft Corp. v. Rainey 320Problem 7-30 325Problem 7-31 325

IV. The FRE 804 Exceptions 326A. Unavailability 326

Problem 7-32 327Problem 7-33 327

B. Former Testimony 327Focus Questions: United States v. Feldman 329United States v. Feldman 329Focus Questions: Clay v. Johns-Manville Sales Corp. 331Clay v. Johns-Manville Sales Corp. 332Problem 7-34 333Problem 7-35 333

C. Dying Declarations 334Focus Questions: State v. Adamson 335State v. Adamson 335Problem 7-36 338Problem 7-37 338

D. Statements Against Interest 339Focus Questions: Williamson v. United States 340Williamson v. United States 340Problem 7-38 345Problem 7-39 345

E. Forfeiture by Wrongdoing 346Problem 7-40 347Problem 7-41 347

V. The Residual Hearsay Exception 348Focus Questions: Dallas County v. Commercial Union Assurance Co. 349

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Dallas County v. Commercial Union Assurance Co. 349Problem 7-42 353Problem 7-43 353

VI. Final Thoughts on Hearsay 354Professional Development Questions 355

Chapter 8 · The Confrontation Clause and Due Process 357I. The Confrontation Clause 357

A. Overview to the Confrontation Clause 357Focus Questions: Crawford v. Washington 358Crawford v. Washington 358Focus Questions: Davis v. Washington and Hammon v. Indiana 370Davis v. Washington & Hammon v. Indiana 371

B. The Evolution of the Confrontation Clause after Crawford and Davis 380Focus Questions: Michigan v. Bryant 381Michigan v. Bryant 381Focus Questions: Bullcoming v. New Mexico 395Bullcoming v. New Mexico 396

C. The Evolution of the Confrontation Clause after Bryant and Bullcoming 406D. Synthesizing the Confrontation Clause 408

Problem 8-1 412Problem 8-2 413Problem 8-3 413

II. Due Process 414Chambers v. Mississippi 414Problem 8-4 421


Chapter 9 · Authentication and Best Evidence 423I. Authentication 423

Overview Problem 425Focus Questions: Bruther v. General Electric Co. 427Bruther v. General Electric Co. 427Problem 9-1 429Problem 9-2 429Problem 9-3 430Problem 9-4 431

II. The Best Evidence Rule 432Overview Problem 433Focus Questions: Meyers v. United States 435Meyers v. United States 435Problem 9-5 438Problem 9-6 438Problem 9-7 438


Chapter 10 · Lay and Expert Evidence 441I. Layperson Testimony 441

Focus Questions: Government of the Virgin Islands v. Knight 443

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Government of the Virgin Islands v. Knight 443Problem 10-1 444Problem 10-2 444

II. Expert Testimony 445Overview Problem 445

A. Proper Qualification 446United States v. Locascio 447Problem 10-3 447

B. Proper Topic 448United States v. Locascio 450Focus Questions: Torres v. County of Oakland 451Torres v. County of Oakland 451Focus Questions: United States v. Hines 454United States v. Hines 455Problem 10-4 457Problem 10-5 458

C. Proper Basis 459United States v. Locascio 461Problem 10-6 462Problem 10-7 466

D. Proper Methodology 467Focus Questions: Daubert v. Merrell Dow 467Daubert v. Merrell Dow Pharmaceuticals 468Focus Questions: Kumho Tire Company v. Carmichael 475Kumho Tire Company v. Carmichael 475Focus Questions: Hernandez v. City of Albuquerque 483Hernandez v. City of Albuquerque 483


Chapter 11 · Privileges 493I. Overview to Privileges 493II. Attorney-Client Privilege 494

A. Communication 495B. Made in Confidence 495C. Between Privileged Parties 496D. Legal Assistance 497E. Exceptions/Waiver 497

Focus Questions: Sandra T.E. v. South Berwyn School District 100 498Sandra T.E. v. South Berwyn School District 100 498Focus Questions: United States v. Lentz 503United States v. Lentz 503Problem 11-1 509Problem 11-2 509Problem 11-3 510Problem 11-4 510Problem 11-5 511

III. Marital Privileges 511A. The Spousal Testimonial Privilege 512B. The Marital Communications Privilege 512

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C. Comparison of the Privileges 513Focus Questions: Trammel v. United States 513Trammel v. United States 514Problem 11-6 518Problem 11-7 518Problem 11-8 519Problem 11-9 519

IV. The Doctor and Psychotherapist Privileges 519Focus Questions: Jaffee v. Redmond 520Jaffee v. Redmond 521Problem 11-10 528

V. Other Privileges 528Professional Development Questions 530

Appendix · Federal Rules of Evidence 531Article I. General Provisions 531Article II. Judicial Notice 532Article III. Presumptions in Civil Cases 533Article IV. Relevance and its Limits 533Article V. Privileges 538Article VI. Witnesses 539Article VII. Opinions and Expert Testimony 542Article VIII. Hearsay 544Article IX. Authentication and Identification 549Article X. Contents of Writings, Recordings, and Photographs 552Article XI. Miscellaneous Rules 553

Index 555

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xix

Table of Principal Cases

Baker v. State, 304, 305Beech Aircraft Corp. v. Rainey, 319, 320Bourjaily v. United States, 279Bradbury v. Phillips Petroleum Co., 101Broyles v. Commonwealth, 166Bruther v. General Electric Co., 427Bullcoming v. New Mexico, 395, 396Chambers v. Mississippi, 414Clay v. Johns-Manville Sales Corp., 331, 332Crawford v. Washington, 358Dallas County v. Commercial Union As-

surance Co., 349Daubert v. Merrell Dow Pharmaceuticals,

467, 468Davis v. Washington, 370, 371Doe v. United States, 221Government of the Virgin Islands v. Knight,

443Hammon v. Indiana, 370, 371Henderson v. DeTella, 192Hernandez v. City of Albuquerque, 483Hicks v. Commonwealth of Kentucky, 53,

59Jaffee v. Redmond, 520, 521Kumho Tire Company v. Carmichael, 475Mahlandt v. Wild Canid Survival & Research

Center, Inc., 272, 273Meyers v. United States, 435Michigan v. Bryant, 381Mutual Life Ins. Co. v. Hillmon, 290Old Chief v. United States, 76Pena-Rodriguez v. Colorado, 24, 25People v. Zackowitz, 126

Reyes v. Missouri Pacific R.R. Co., 155Sandra T.E. v. South Berwyn School

District, 498Scheerer v. Hardee’s Food Systems, Inc., 315State v. Adamson, 335State v. Dullard, 246State v. Galvan, 242, 243State v. Morgan, 196State v. Peterson, 4, 49, 50, 52, 70, 71, 73,

131Stephens v. Miller, 223Tanner v. United States, 17Tome v. United States, 258Torres v. County of Oakland, 451Trammel v. United States, 513, 514United States v. Abel, 187United States v. Brewer, 204, 205United States v. Feldman, 329United States v. Figueroa, 53United States v. Gilliland, 169United States v. Guardia, 178United States v. Hernandez, 148United States v. Hines, 454, 455United States v. Houlihan, 293United States v. Iron Shell, 298United States v. James, 61United States v. Kim, 311United States v. LeCompte, 176United States v. Lentz, 503United States v. Locascio, 446, 447, 450,

460, 461United States v. Long, 245United States v. Opager, 215

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United States v. Owens, 265, 266United States v. Parry, 240, 241United States v. Robinson, 141United States v. Winchenbach, 211

Williams v. McCoy, 113Williamson v. United States, 340Wood v. Morbark Industries, Inc., 94

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Series Editor’s Preface

Welcome to a new type of law text. Designed by leading experts in law school teachingand learning, Context and Practice casebooks assist law professors and their students towork together to learn, minimize stress, and prepare for the rigors and joys of practicinglaw. Student learning and preparation for law practice are the guiding ethics of these books.

Why would we depart from the tried and true? Why have we abandoned the legal educationmodel by which we were trained? Because legal education can and must improve.

In Spring 2007, the Carnegie Foundation published Educating Lawyers: Preparation forthe Practice of Law and the Clinical Legal Education Association published Best Practicesfor Legal Education. Both works reflect in-depth efforts to assess the effectiveness of modernlegal education, and both conclude that legal education, as presently practiced, falls quiteshort of what it can and should be. Both works criticize law professors’ rigid adherence toa single teaching technique, the inadequacies of law school assessment mechanisms, andthe dearth of law school instruction aimed at teaching law practice skills and inculcatingprofessional values. Finally, the authors of both books express concern that legal educationmay be harming law students. Recent studies show that law students, in comparison to allother graduate students, have the highest levels of depression, anxiety and substance abuse.

The problems with traditional law school instruction begin with the textbooks lawteachers use. Law professors cannot implement Educating Lawyers and Best Practices usingtexts designed for the traditional model of legal education. Moreover, even though ourunderstanding of how people learn has grown exponentially in the past 100 years, no lawschool text to date even purports to have been designed with educational research in mind.

The Context and Practice Series is an effort to offer a genuine alternative. Grounded inlearning theory and instructional design and written with Educating Lawyers and BestPractices in mind, Context and Practice casebooks make it easy for law professors to change.

I welcome reactions, criticisms, and suggestions; my e-mail address is [email protected]. Knowing the author(s) of these books, I know they, too, would appreciateyour input; we share a common commitment to student learning. In fact, students, ifyour professor cares enough about your learning to have adopted this book, I bet s/hewould welcome your input, too!

Michael Hunter Schwartz, Series Designer and EditorConsultant, Institute for Law Teaching and Learning

Dean and Professor of Law, University of the Pacific, McGeorge School of Law

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Preface and Acknowledgments

People learn best when they answer their own questions and receive feedback on theirefforts. They achieve their best insights when they fight through confusion throughthought, reflection, and problem solving. In this way, knowledge is constructed, not re-ceived.

In this book, most of our focus will be on the ambiguity and uncertainty in evidencelaw— what I often refer to as the “gray area.” In each section, the core tests and rules arepresented right up front, as clearly as I could write them. The rest of the section exploresuncertainty: What are the ambiguities in the rules? How do courts apply the test? Uponwhat does the court rely in making its determination? By recognizing these gray areas,grappling with them, rethinking our assumptions, and examining our mental models ofreality, we can turn confusion into insight.

It is my hope that this book will help you construct knowledge through a natural,critical learning environment in your classroom. By “natural,” I mean that you will exploreauthentic, real-world application of evidence law. By “critical,” I mean that you will notonly examine your understanding of the law, its application, and its synthesis, but alsohave the opportunity to provoke an imagination that leads to possibilities and solutions.I hope it will help you develop all the skills that a practitioner must possess, such ascreativity, practical judgment, fact finding, persuasive advocacy, strategic planning,passion, and engagement.

Most of all, I hope that journey is a good one for you. Have fun with this book: activelyengage in the motivations of the parties and lawyers in the cases, try to predict the outcomeof the problems, and do not ignore the emotions that arise in you as you go through thesematerials. In other words, dive into the ambiguity and make the knowledge your own.

AcknowledgmentsTremendous thanks go to my wife, Joy, who supported me in writing this book in

every way imaginable. This book would not exist without her love, patience, and hardwork. I also owe so much to my children, Eva and Charles— yes, the book is done, and,yes, I now have more time to play. Words simply cannot express my love and gratitudeto you all.

I am very grateful to Michael Hunter Schwartz for his faith and patience. I would alsolike to thank the excellent people at Carolina Academic Press for their hard work on thisbook and commitment to this series.

Denis Poncet and Jean-Xavier de Lestrade created a remarkable documentary in “TheStaircase,” and I thank them for use of excerpts of their work.

Many research assistants have their fingerprints all over this book. Roni Pomerantzdeserves special mention, as her excellent work served as a model for me and for all the

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other research assistants. I would also like to thank Andrea Alarcon, Adam Beshara,Michael Sier, Kimberlina McKinney, Lindsey Harms, Rosie Kim, and Amira Hasenbush.

My Evidence classes at UCLA School of Law in 2010 and 2011 had to suffer throughdrafts of this book. They did so with grace and good humor. I thank them for theirinsights and constructive criticism.

Pavel WonsowiczJuly, 2012

Acknowledgments for the Second Edition

I would like to thank my wife and children for their continued support as this bookevolved into a second edition. Their encouragement and patience made this book possible.Their insights proved invaluable, although my daughter Eva’s request that I re-name thebook “EVAdence” was ultimately rejected.

Thanks also to my students who made thoughtful suggestions about the first edition.In particular, Rebecca Rosen provided wonderful revisions and very clever flowchart ideasfor this edition.

Pavel WonsowiczMarch, 2017

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Documents

Evidence - Carolina Academic Press1).pdf · Hearsay: Rule Deconstruction 233 A. The Hearsay Declarant ... Hearsay Quiz 251 CONTENTS xiii 00 c 2 6/20/17 10:32 AM Pa . II. The Hearsay