[EVIDENCE] 1 - 11

[Sulgi]

1.People v. Collins

California Supreme Court 68 Cal. 2d 319, 438 P.2d 33, 66 Cal. Rptr. 497 (1968)

FACTS

On June 18, 1964, Mrs. Juanita Brooks, the victim, was robbed on her way home after she had a shopping. While she was being attacked, she saw a young woman running from the scene. She discovered that her purse with $35-$40 cash was missing. She described robber wearing “something dark”, and had hair “between a dark blond and a light blond” but lighter than the color of defendant Janet Collins’ hair. And there was a witness John Bass, who lived on the street on the same alley where the robbery happened, he saw a woman run out of the alley and enter a yellow automobile which was parked across the street from him. He described the driver of the car that he was a black, wearing a mustache and beard. However, the defendant, Malcolm Ricardo Collins was beardless at the police lineup shortly after the attack. He also described the woman as a Caucasian, 5 feet tall, her hair in a dark blonde ponytail and wearing dark clothing. It was difficult to determine whether defendants are guilty. But defendants denied any criminal activities that they were accused and no one saw the actual face of the robber. Thus prosecutor called an instructor of mathematics at a state college, and applied mathematical probability which arrived at there is one chance in 12 million that defendants were innocent. Jury and lower court found defendants guilty and defendant Malcolm appealed. 

ISSUE

Was the evidence of mathematical probability by prosecutor relevant to the case and properly introduced to the jury for determining the defendant’s guilty. 

RULE

State v. Sneed(1966) 76 N.M. 349, 414 P.2d 858

Mathematical odds are not admissible as evidence to identify a defendant in a criminal proceeding so long as the odds are based on estimate, the validity of which have not been demonstrated. 

APPLICATION

 Identification of the defendant is very difficult in this case because there was nobody saw the actual face of the robber. Then from the testimonies of victim and witness, prosecutor and mathematician made 6 factors and applied “product rule” to strengthen his assertion. According to this theory there is only one chance in 12 million that defendants were innocent and that another duplicated couple committed to the robbery. However, the Court found that it was based on unfounded assumption and distracted the jury from its proper function of weighing the evidence on the issue of guilt.

  First, there is no evidence presented by prosecutor relating to any of the 6 individual factors. In State v. Sneed, this is not valid because it’s based on estimate. Plus, these individual factors are overlapping, such as “Negroes with beards” and “men with mustaches”, and it makes the product rule in erroneous and exaggerated result. 

  Second, this evidence shows merely how infrequently beard black man drives yellow cars in the company pf blonde females with ponytails. This does not prove any of accusation against suspect, thus there is no support to determine the guilt. Even if the calculation had no error, it also implies that there is more than 40% chance that defendants are innocent. This mathematical demonstration impressed the juror and confused them but it fails to assess its relevancy. It cannot be qualified and must be excluded. 

CONCLUSION

No, the trial by mathematics so distorted the role of the jury and so disadvantaged counsel for the defense, as to constitute in itself a miscarriage of justice. The judgment against defendant must therefore be reversed. 

LIVE CLASS NOTE

증거법 중에서 Relevancy 에 대해서 배운 시간이었습니다. 검사가 제시한 수학 교수의 수치는 이 사건과 관련이 있는 것 같아보였지만, 그 자체로 오류가 있고 잘못된 판결을 유도할 수 있기 때문에 받아들여지지 않았습니다. 

Rules of Evidence = “Relevancy”

2.Wright v. Doe D.Tatham 

Court of Exchequer Chamber (1837) — England.

FACTS

Testator, John Marsden had left the will that his valuable real property would be succeeded to his steward, George Wright (Defendant). Sanford Tatham(Plaintiff), a cousin and sole heir of decedent brought a suit by alleging that the will is not enforceable because testator was not capable to establish the valid will. Both parties presented the evidence supporting each party to prove the mental capacity of the testator. 

ISSUE

Are the three letters admissible as proof that the testator satisfied the requirement of capacity to enforce the will?

RULE 

The written statement made out of the court by third party without cross-examination which has the implied assertion of the issue should not be admissible as the evidence as hearsay.

APPLICATION

  Plaintiff presented the evidence to support his assertion and the court admitted the opinions described that testator was “weak in understanding and ignorant of the commonest natural occurrences.”… “displayed imbecility in his amusements”. And there were more evidences showing that in his youth “he was talked to as a man was capable of anything but child by his own servants.” 

  Contrary evidences by defendant were presented to prove that testator had “such understanding and judgment as to be competent to conduct all the ordinary transaction of life”. Three letters  implied that the testator was respected as a rational man and was capable to conduct business. However, the letters were all inadmissible on the ground of hearsay. It is not credible because it was not upon oath. Writers of letters died before trial and without cross-examination, a statement or opinion would be inadmissible.

  The court stated that “proof of a particular fact (receiving the letter) which is not a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible.”

CONCLUSION

No, in this case the letter which are offered only to prove the competence of the testator, that is the truth of the implied statements therein contained, were properly rejected, as the mere statement or opinion of the writer would certainly have been inadmissible. 

*Barron’s Dictionary of Legal Terms.

LIVE CLASS NOTE

증거법에서 첫번째로 중요한 relevancy 가 통과되었지만 hearsay 룰을 적용. 편지 “내용” 자체는 법정에서 검증되지않은, 제 3자가 남긴 것이므로 증거로 인정되지 않았고, 원고가 이겼습니다.

수업에서는 가정의 상황(우편물을 받지 않았다,내용을 읽지 않았다고 우기는 셀러와의 싸움에서 바이어가 어떻게 증명할 것인지)를 이번 케이스와 접목해서 의견을 나누는 시간이 있었는데 우체국의 새로운 기능을 알게되었습니다. <내용증명>

—— supplementary rule: WILL——

Legal Requirements for testator = Testamentary capacity

Capacity to understand and execute a valid will 

1)know the nature and extent of their property

2)know the natural objets of their bounty

3)understand how the will disposes of their property

4)demonstrate the ability to make a rational plan as to the disposition of their property

3. United States v. Pacelli

United States Court of Appeals for the Second Circuit - 491 F.2d 1108, cert. denied, 419 U.S. 826 (1974)

FACTS

Vincent Pacelli(defendant) was indicted for his narcotic operation and Pasty Park(victim) was to be a witness at trial on Feb 8. But Pacelli murdered the victim on Feb 4 and was arrested by the police. Prosecutor presented Lipsky who was a coconspirator of the crime as a witness of the crime and the meeting with other family members and friends on Feb 10. After the trial, Pacelli was convicted for (1) violation of 18 U.S.C. 241 by conspiring with Lipsky to deprive Pasty Parks of her right to be a witness at trial, causing her death. (2) violation of 18 U.S.C. 1503 by using force to impede and injure Parks who had been a grand jury witness and who had been called to testify for the government in a narcotic case against Pacelli. Pacelli appealed asserting that he was not given fair trial because the Lipsky’s testimony was admitted without cross-examination as the evidence but on the basis of hearsay rule is not admissible.

ISSUE 

Is the oral assertion by the third party made out of the court admissible as a reliable evidence which implies the declarant knew that the plaintiff committed the crime without cross-examination under hearsay rule? 

RULE

Federal Rules of Evidence. Rule 801 Hearsay

(a)Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion

(b)Declarant. “Declarant” means the person who made the statement.

(c)Hearsay. “Hearsay” means a statement that;

 (1)the declarant does not make while testifying at the current trial or hearing; and

 (2)a party offers in evidence to prove the truth of the matter asserted in the statement. 

(d)Statements that are not hearsay. 

 (2)an opposing party’s statement 

   (E)was made by the party’s coconspirator during and in furtherance of the conspiracy. 

Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949)

The extra-judicial statements clearly implied knowledge and belief on the part of third person declarants not available for cross-examination as to the source of their knowledge regarding the ultimate fact in issue was excludable hearsay evidence. 

APPLICATION 

   Pacelli argues that the trial court made prejudicial error under hearsay rule when the court permitted Lipsky to testify as to conduct and statements of Beverly Pacelli(wife of defendant), Frank Bassi(uncle) and Perez and Bracer(friends) at the Bassis’ apartment on Feb 10. The statement and conduct in question are; “Parks’ body had been found and Pacelli had been put in jail.” “There is a million places to put a body and you don’t have to … burn it up and leave it laying right out in the middle of nowhere for people to find” “go away for a while” and Perez gave Lipsky $1,000 for the trip. 

   These statements are strongly indicative that they knew that Pacelli caused Pasty Park’s death, but these informations might came from Lipsky himself to save himself or from third persons, or from news media. Because Pacelli had no time to confess to all these people his crime and had been jailed on the same day as the police found the victim’s body.

 Indeed, there is no statement by declarant that they observed Pacelli commit the crimes. Thus, it is less reliable than it is in Krulewitch case where declarant stated plainly implied that petitioner was guilty of the crime. Plus, declarants were not available for cross-exmaination. Therefore the evidence is inadmissible under hearsay rule. Therefore, Pacelli is entitled to cross-examine the third party declarants in order to test validity of inference that he had told the declarants he had killed Parks. 

 Additionally, the credibility and innocense of Lipsky is in quesion. The fact that he had committed perjury on several occasions, wrote letter to attorney pleading guilty to the reduced charge of manslaughter and had been given immunity from the cooperation in federal narcotic invetigations against Pacelli indicates that Lipsky himself was a killer of victim. 

 *The conspiracy to violate Parks’ civil rights had terminated with her death, this proof was not admissible as declarations of a co-conspirator made in the course of of a conspiracy.  Hearsay rule (d)(2)(E)

CONCLUSION

The judgment of conviction is reverse and remand for a new trial.

LIVE CLASS NOTE

Hearsay 룰을 면밀히 분석하고 케이스에 적용, 법원이 이 케이스를 Krulewitch 케이스와 비교해서 어떤 논리로 결론을 내렸는지 확인습니다. 

법원이 사용한 비교법! 

이번 케이스는 Krulewitch 케이스보다 less indicia of reliability 하고,

Krulewitch 케이스에서도 증거로 인정하지 않았는데 그것보다 더 약한(?) 이번 건은 더욱 인정할 수 없다. 

The opinion of the New Trial in July 1986

(In between, the Court rendered the judgment on the charge of narcotic case)

https://law.justia.com/cases/federal/district-courts/FSupp/639/1382/1746094/

Conclusion:

Nassau County(Defendant)s’ motion in limine to preclude the prior testimony of Barry Lipsky is granted. Defendant’s motion for summary judgment is granted and the Complaint by Pacelli(plaintiff) is dismissed. 

Pacelli 무기징역.

Criminal Justice Act 2003 Section 115

the common law will not prevent the admission of such implied assertion on the basis of the hearsay rule.

 - 이 룰은 implied assertion 을 채택하는 것을 막지않겠다는 말이지만, 오늘 케이스에서 배운 것과 충돌하지 않는다. reliability 에 따라서 결정하는 것. 

Reversible error? What was the reversible error? 

**Difference between Krulewitch and the current case

Implied assertion could be considered as a hearsay and inadmissible.

The current case also arguing implied assertion

**Level of implied assertion/ Which one has more reliability? 

Comparison method - 지금 사건이 덜 reliable 하니까 heasay rule 적용해야죠. 심지어 그건 Supreme Court 결정임.

*왜 new trial 을 하는가? 새로 팩트 파인딩 - cross examination 을 위해. 

그들이 나눈 대화가 Lipsky 증언한 것과 얼마나 일치하는지 확인. 

4. State v. Smith 

Washington Supreme Court 97 Wash. 2d 856, 651 P.2d 207(1982)

FACTS

Rachael Colins was attacked cruelly about 6:30am on July 10, 1980 at the Double D Motel, Washington. She received a cracked nose, bruises, black eyes, and required several stitches on her face. Upon suggestion by police officer she went to the police office and wrote the statement describing the details of the assault and identified Nova Smith as attacker in her own words. She signed each pages and the detective signed as a witness, then under oath she signed the affidavit in front of notary. On the same day, she was chased by defendant. At trial, however, she named another man Mr.Gomez. The statement was admitted as substantial evidence and the jury found Smith guilty of assault in the second degree(Intentionally Causing Serious Physical Injury to Someone). The trial Judge ruled that the statement was admissible but granted a new trial declaring that ER 801 did not apply.  

ISSUE

Is a prior inconsistent written statement by the victim under oath at the police station admissible as a reliable evidence which made in scope of “other proceeding” of Evidence Rule801?

RULE

Evidence Rule ER 801(d)(1)(i); Washington State (워싱턴주) 

(d)Statements which are not Hearsay. A statement is not hearsay if - (1) Prior Statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i)inconsistent with this testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition…

United States v. Castro-Ayon 537 F.2d 1055(9th Cir) (1976)

The Legislature intended the term “other proceeding” to be open-ended and not restricted to grand jury proceedings.

APPLICATION

  Evidence Rule of Washington 801 literally taken from Fed. R. Evid. 801. The United Supreme Court adopted the rule and passed by the Senate adopted the minority position allowing all prior inconsistent statements to be used as substantive evidence. Despite of objection by The House Subcommittee where it sought to limit the rule by requiring that the statement be made under oath, subject to penalty for perjury, and given at a “trial, hearing, or before a grand jury”, the United Supreme Court considered the intention of the Legislature and determined the term “other proceeding” to be open-ended and not restricted to grand jury proceedings. United States v. Castro-Ayon 537 F.2d 1055(9th Cir) (1976). The intention of making statement under oath is to assure the reliability of the evidence. And in many cases, the inconsistent statement is more likely to be true than the testimony at trial as it was made nearer in time to the matter to which it relates and is less likely to be influenced by factors such as fear or forgetfulness. Thus, Ms. Colins prior inconsistent statement is reliable because she wrote the statement in her own words, attested to before a notary, under oath and subject to penalty for perjury. 

 Additionally, her sworn statement was taken standard procedure in one of four legally permissible methods for determining of Probable cause, Filing of an information by prosecutor in superior court. This first method is usually the result of police investigation into alleged criminal activity, and the taking of statements from witness and the presentment of them to the prosecuting attorney. The purpose of these four methods are the same and other proceeding under the Rule cover the other three method. Thus it should also be covered by the rule and Ms.Colin’s statement would be admissible as substantive evidence.  

CONCLUSION

The Court held that under the facts of this case the statement was admissible as substantive evidence. The decision of trial court for a new trial is reversed and remand to reinstate the verdict.

LIVE CLASS NOTE - 인생 첫 MOOT COURT

변호사님께서 팀멤버들을 한방에 묶어주시고나서 흘렀던 15초의 정적. 변호사님은 아실까…우리가 얼마나 멘탈붕괴 + 긴장했는지!! 잘한 것도 있지만 실수도 여전히 많고 정리되지 않은채 머릿속에 떠도는 많은 정보들을 조리있게 말하는 것도 아직은 많이 어렵다. 팀원분들께서 아주 잘해주셔서 매끄럽게 넘어갈 수 있었던 것 같다! 매수업시간 부끄러운 순간이 너무 많지만 ㅠㅠ 조금씩 계속해서 발전하는 걸 목표로 전진!

167 plaintiff v. 157 defendant

그리고 우리팀이 이겨서 기분이 매우 좋았다!! ^^

Probable cause 를 확인하기 위한 4가지 절차 

Original Purpose of Sworn Statement

1 Filing of an information by prosecutor

2 Grand Jury indictment

3 Inquest proceeding

4 Filing a criminal complaint before a magistrate

*순서

Assault Victim Wrote a Written statement - under oath - to investigating police officer - assailant Nova Smith

At trial, she named another man as her attacker

Jury found Smith guilty of assault in the second degree

Judge granted a new trial by questioning the admissibility of the inconsistent statement because it was given out of proceeding. 

Appealed - the Court hold that the statement is admissible and reversed the decision for a new trial.

두 가지 증언이 인정이 되면 - 둘 중에 뭐가 더 reliability 가 있는지 보고 결정.

5.United States v. Hoosier 

United States Court of Appeals for the Sixth Circuit 542 F.2d 687 (1976)

FACTS

Defendant, Hoosier is convicted because of armed robbery of a federally insured bank. Three out of four witnesses identified him. And 5th witness, Robert E. Rogers, testified that in presence of defendant, defendant’s girl friend said that “That ain’t nothing, you should have seen the money we had in the hotel room’ and she spoke of ‘sacks of money’. This statement was admitted as an evidence. Defendant alleged that it is inadmissible because the statement is hearsay.

ISSUE

The statement by girlfriend of defendant which is made out of court in presence of defendant, and if defendant did not deny the fact of it, is not hearsay and admissible as an evidence? 

RULE

FRE 801(c) Hearsay.

 “Hearsay” means a statement that:

1. the declarant does not make while testifying at the current trial or hearing; and
2.  a party offers in evidence to prove the truth of the matter asserted in the statement. 

FRE 801(d)(2)(B)

(2) Admission by party-opponent. The statement is offered against a party and is… (B)a statement of which he has manifested his adoption of belief in its truth, or..

->The Advisory Committee’s note

(B)Under established principles an admission may be made by adopting or acquiescing in the statement of another… Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. 

APPLICATION

  As the defendant alleged, the statement by his girl friend is satisfied as a hearsay. It was made out of the court, without oath and the cross examination. It implies the truth that defendant robbed the bank and retains the money in the hotel room. 

 However, the Federal Rule of Evidence 801(d)(2) defines the statement made by opposing party is not a hearsay when it is one the party manifested that it adopted or believed to be true. Defendant was present with his girl friend and Rogers when the girl friend made the statement. And his silence is considered as adoption according to The Advisory Committee’s note

  It might be an attempt to avoid any situation that his statement be used against himself. But defendant trusted Mr. Rogers, thus it is little likelihood that his silence was due to “advice of counsel” or fear of “misuse of his statement”.  

CONCLUSION

While the Court agree with appellant’s counsel that more is needed to justify admission of this statement than the mere presence and silence of the appellant, the Court found that there was more in this record. 

No reversible error, the judgment of conviction is affirmed. 

LIVE CLASS NOTE

Main issue 외의 related issue 와 hidden issue 를 구별하고 답을 찾아봤습니다. 이번 케이스의 논점이었던 Mr.Rogers 의 증언 (1)피고가 은행을 털겠다고 본인에게 직접 얘기한 것 (2)피고가 많은 돈과 다이아몬드 반지를 끼고 있는 것을 본 것 (3)피고의 여자친구가 “우리가 호텔에 더 많은 돈을 가지고 있다”고 피고가 있는 상황에서 얘기했고, “돈가방”들을 언급했다고 한 것 중 (1), (2)가 어째서 증거로 인정되었는지 그리고 (3)의 declarant 인 여자친구가 왜 opposing party 인지 확인했습니다.  

*법원의 결론과 라이브클래스에서 다른 연구생분들이 언급했듯이,

여자친구의 statement 는 opposing party 의 statement 가 맞다고 생각합니다. 왜냐하면, 목격진술을 하고 있는 Mr. Roger 는 검사측 증인이고, 그 진술의 반대쪽에 있는 것이  “우리(we)”인 피고와 여자친구이기 때문입니다. 현재 피고와 어떤 관계인지는 상관없이 (둘이 헤어졌거나, 현재 배신을 했거나) 진술하고 있는 상황 당시에 반대쪽이었기 때문에 hearsay 가 아닌 것으로 인정된 것 같습니다. 

(c) Hearsay. “Hearsay” means a statement that:

1. the declarant does not make while testifying at the current trial or hearing; and
2.  a party offers in evidence to prove the truth of the matter asserted in the statement. 

(d)Statements that are not hearsay

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

1. was made by the party in an individual or representative capacity;
2. is one the party manifested that it adopted or believed to be true;
3. was made by a person whom the party authorized to make a statement on the subject;
4. was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
5. was made by the party’s coconspirator during and in furtherance of the conspiracy.

*증언(1) Rule 803 - intent, plan before the fact

*증언(2) Rule 701 - witness testimony

NOTE 

Reversible error is an error in trial proceedings that affects a party’s rights so significantly that it is grounds for reversal if the affected party properly objected at trial. Contrast with harmless error.

: mistake of fact, mistake of rule

: 에러임에도 불구하고, harmless error 일 경우 법원 판결을 뒤집지 않음. 

Harmless error is an error by a trial judge in the conduct of a trial that an appellate court finds was not damaging enough to the appealing party's right to a fair trial to justify reversing the judgment, or to warrant a new trial. Harmless errors include: 

:right to fair trial = due process 

Miranda Warning - In Miranda, the Court held that a defendant cannot be questioned by police in the context of a custodial interrogation until the defendant made aware of:

*The right to remain silent

*The right to consult with an attorney and have the attorney present during questioning, and

*The right to have an attorney appointed if indigent.

These warnings stem from the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel.   

Without a Miranda warning or a valid waiver of the Miranda rights, statements made may be inadmissible at trial under the exclusionary rule, which prevents a party from using evidence at trial which had been gathered in violation of the United States Constitution.

2nd or 3rd degree robbery

6. United States v. Pheaster

United States Court of Appeals for the Ninth Circuit 544 F.2d 353 (1976), cert. denied 429 U.S. 1099(1979)

FACTS

The victim, Larry Adell is a son of multi-millionaire Robert Adell. Around 9:30pm on June 1, 1974, Larry expressed intention to meet a guy named Angelo briefly and walked to the parking lot from the restaurant where he was with his friends. But he did not return to his friends that night, and the search for Larry was failed. Then there were several calls and letters of requesting ransom money of $400,000 for the release of Larry from who claimed that they held Larry. Despite of 4 attempts to deliver the ransom money, these kidnappers never taken it and Larry was never released. After then, F.B.I who was involved this case from the beginning arrested Pheaster and Inciso for conspiracy to kidnap and hold Larry for ransom. The District Court sentenced them 70 years on 12 count criminal. 

ISSUE

The statement by victim’s friend which describes the intention of the victim to meet one of the suspect is an exception of hearsay and admissible as an evidence? 

RULE

Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892)

Hillmon Doctrine; the state of mind of the declarant is used inferentially to prove other matters which are in issue. Simply, the doctrine provides that when the performance of a particular act by an individual is an issue in a case, his intention (state of mind)to perform that act may be shown. — the person carried out his intention and performed the act. 

Section 1250 California Evidence Code

(2) which allows the use of such hearsay evidence when it “is offered to prove or explain acts or conduct of the declarant.”

Comment: “thus, a statement of the declarant’s intent to do certain acts is admissible to prove that he did those acts.”

APPLICATION

   Defendant Inciso contends that the statement by Larry’s friend is not admissible as hearsay. The statements in question are (1)Francine Gomez - Date of Larry; stated that Larry told her that he was going to meet Angelo at Sambo’s North at 9:30pm to “pick up a pound of marijuana which Angelo had promised him for free” (2)Doug Sendejas - Friend of Larry who was with him at Sambo’s North; stated that Larry said that “he was going to meet Angelo and he’d be right back.”

  Here Inciso has no objection about the admissibility to the extent of intention of Declarant that he is going to meet “Someone” but, argues that there was no need to name the person with whom Larry intended to meet. Thus, this was prejudicial error and incriminating him in this case. Government argues that statement is admissible because the issue is whether Larry did meet Inciso as intended under Hillmon Doctrine. The hearsay exception is not limited to the “issue of state of mind” but can be admitted to show whether the particular act was carried out by declarant.

  Section 1250 of the California Evidence Code; 1250(2) stated that the statement of the declarant’s intent to do certain acts is admissible to prove that he did those acts. In this Code, the decision of People v. Alcade was cited where the holding Hillmon was “the leading case on the admissibility of declarations of intent to do an act as proof that the act thereafter was accomplished”. Similar to this case, declarant(Larry) is not available to testify what happened, and there are other evidences supporting that defendant(Inciso) met Larry.  

   Therefore, without the limitations of the other persons intention, the Hillmon doctrine could be applied to facts to show that declarant did meet someone named Angelo. And Inciso’s first contention should be moot. The Court conclude that the district court did not err in allowing the testimony concerning Larry Adell’s statements to be introduced. 

CONCLUSION

It is admissible under the Hillmon Doctrine. 

LIVE CLASS 

>>MOCK TRIAL - Defendant(Pheaseter & Inciso) 

깜짝 모의법정이 다시 등장했습니다. 이번에도 연구생님들과 힘을 합쳐서 무사히(?)… 판사님께서 여쭤보시는 질문을 곰곰히 생각하다보면 뭔가 답을 알듯 말듯, 해결책이 나올랑 말랑 하는 그런 신기한 기분이 들 때가 있습니다. 어떨때는 맞는 생각으로 귀결되고 어떨 때는 논점을 벗어난 애매한 생각만 하다가 끝나기도 합니다. 언젠가는 맞는 답이 바로 나오기를…!!

Assignment

 Inciso 의 주장대로 Larry가 자발적으로 사라진 것인지 아닌지의 경우를 확인하기 위한 경우 statement가 hearsay exception 으로 제출되거나 안되거나에 영향을 미치는가?

  - General Hearsay exception 은 (1) state of mind (2) state of mind is an issue 인 경우입니다. Statement 는 화자 Larry 의 state of mind; ”누군가를 만날 것이다” 보여줍니다. 하지만 (2)번 조건이 만족되지습니다. 그래서 Hearsay 예외사항에 해당되지 않습니다. 게다가 Inciso 의 주장대로 그가 자발적으로 사라졌다는 전제라면 정부측이 그 반대인 경우-자발적으로 사라진 것이 아니다-를 증명하기 위한 누구를 “만난 것”과 관련이 있긴하지만 “누군가”로 지목된 Angelo 의 이름이 드러나면서 “만난 사람은 Anlgelo 고 그 직후 사라졌으니까 이 사건과 관련이 있을 것이다” 라는 편견을 만들 수 있기 때문에 채택될 수 없다고 생각합니다.

  - 하지만 만약 이슈가 statement안의 화자인 Larry 가 “Insico 를 만났는지”를 따지는 것이라면 판결문에서처럼 Hillmon Doctrine 에 의해 채택될 수 있습니다. 

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Hearsay - Hillmon Doctrine 

Admissible when the statement - State of mind - issue 도 state of mind 여야함

Larry 의 의도와 그 의도가 이슈가 되야하는데 - 불합리하게 Inciso 의 의도를 파악하는 것으로도 확장됐다.

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Court Q.몇명의 목격자가 있었는가 희생자가 없어진 것에 대해서

Two witnesses to the Court

Fact confirm‎ing step:

Missing = Crime of kidnapping? Conspiracy for ransom? Crime of murder? trial court 

No, 우리쪽은 실종일 뿐 납치는 없었다 주장.

주장할 수 있는 Authorities;

Hearsay 801

Principle of common law; Hillmon Doctrine 

Shepherd - Cardozo

House committee 

**Judge’s instruction 은 매우 중요합니다 잘 듣고 잘 따라야만 합니다

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>>아래는 판결문 개인적으로 공부한 내용입니다

Motion to suppress is the motion that revolves around the exclusion of the evidence from trial. In the United States, a motion to suppress is a request made by a criminal defendant in advance of a criminal trial asking the court to exclude certain evidence from the trial.

Booking Process after the suspect is arrested the next step is processing the person into custody known as booking.

 Then having a Bail(Money)

1. Error asserted by Pheaster

1. Sufficiency of count one of the indictment

B. Compliance with the Miranda Requirements

First, the statements were made involuntarily as a result of physical abuse and threats by the arresting F.B.I agents

- His claim was admitted as evidence but district court believed the F.B.I agents. The Court found there had been “no coercion, no abuse, no overcoming of the defendant’s will. 

Second, the arresting agents failed to comply with the procedures enuciated by the Supreme Court in Miranda v. Arizona (1966)

 1.Adequacy of the Miranda Warning

   - he was informed and Pheaster was completely aware of the right. This is not circumstantial evidence but direct evidence from his own mouth that he was aware of his right. 

 2. Waiver of the Miranda Rights

(ISSUE) Whether statements made after he demanded to see an attorney but before he was provided one are admissible -> (RULE)in Miranda “ if the individual states that he wants an attorney, the interrogation must cease until an attorney is present” 

(APPLICATION)  - U.S. v. Hodge; the Court rejected the literal interpretation of Miranda, holding instead that “an arrestee can change his mind after requesting an attorney” as long as the change of minds is “voluntarily and freely made.”

  - U.S. v. Davis; distinction between questioning the suspect and presenting the evidence is the key. 

  - voluntary and free exercise of the right. 

  - Supreme Court in Mosley; rejected a literal interpretation of Miranda, holding that the exercise of the right to remain silent does not preclude all further questioning. 

(CONCLUSION)—->> A waiver of rights under Miranda can occur despite an earlier demand to have an attorney. 

 (RULE)In Miranda; The Government bears a heavy burden to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. 

 -  they have met its “heavy burden” in establishing Pheaster’s waiver. 

 - (HOW) the failure of the agents to sit mute during the ride to county jail, where an attorney could be provided, mandates the exclusion of Pheaster’s statements.

 -(CONCLUSION) it was not mandated. Miranda rights can be implied rather than express. U.S. v. Hilliker. 

  -  Pheaster agreed to cooporate with the agents after he had been in the car for only 15-20mins. 

  -  This is not a case which there was an intentional delay in proving an attorney in the hope the suspect would yield to pressure and recant his demand for an attorney. 

  - Finally, Pheaster was reminded his right, but he continued to talk because of his expressed desire to help them find Larry Adell. 

(CONCLUSION) the waiver of Miranda rights, including the earlier demand to see an attorney, was properly found. 

C. Constitutionality of the Voice Identification

  (ISSUE) the circumstances of a pretrial identification of the same recording by Officer Turley were so “impermissibly suggestive” as to require the exclusion of the testimony at trial. 

  - auditory rather than a visual identification is unusual. 

  - the standard; suggestive confrontations are disapproved because they increase the likelihood of misidentification. -> irreparable misidentifications ->  violates due process 

(  - STOVALL?  )

  (1)necessity for the photographic identification

     - Stovall v. Denno; under the circumstances it was imperative and was constitutional. (Victims words and only her words, “He is not the man” could have resulted in freedom for Stovall. 

    - Baxter Court; when the suspect is not in custody or when the law enforcement officials need “to quickly determine whether they are on the right track” —> in the effort to rescue Larry Adell. 

  (2)particular circumstances surrounding the identification

     a. Identification procedure was suggestive? 

     b.the conduct of the law enforcement officials tended to focus attention on a single suspect? 

        - Officer Turley’s identification was reliable. It is not involving memory victim.it was upon  his independent acquaintance with Pheaster.   

D. Constitutionality of the Handwriting Examples. 

 Argues that unorthodox method of obtaining and utilizing exemplars of his handwriting violated his Fifth Amendment right against self-incrimination. 

  - unusual spelling mistake 

  - In Gilbert v. California, not every compulsion of an accused to sue his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. 

  - argued that “the product of his mind and intellectual processes” but the manner of spelling a word is no less an “identifying characteristic”. 

  (Conclusion) No protected communication is involved. 

E.Admissibility of Evidence Seized During the Search of Pheaster’s Apartment. 

  (1) Pheaster argued that search warrant was invalid because it has no probable cause to believe that the specified items were on the premises. 

  (2) the items are beyond the scope of the warrant

  - the items specified in the search warrant were the types of things that a person who had participated in a kidnapping and in an extortion plot might possess. 

  - (RULE)Court in United States v. Speraman (United States v. Lucarz);  the searches where the nexus between the items to be seized and teh place to be searched rested not on direct observation… but on the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property. 

 - (2)all of the items challenged by Pheaster were either encompassed within the items described in the search warrant or seized pursuant to the “plain view” exception.

 * Plain view exception? 

Plain view doctrine is a rule of criminal procedure which allows an officer to seize evidence of a crime without a warrant when the evidence is clearly visible. This doctrine acts as an exception to the Fourth Amendment’s right to be free from searches without a warrant. Also referred to as clear-view doctrine or plain sight rule. 

F.Admissibility of Evidence Seized during the Search of Pheaster’s Automobile. 

  Pheaster argues that there is (1) no probable cause and (2)the search cannot be justified under the exigent circumstances exception

  — (1)there was abundant probable cause; he had driven the car on number of occasions, had been seen in the vicinity of two of the designated drop sites, obtained the case from a woman in effort to obtain ransom money

  —(2) the car was parked on street wide open to be accessible to persons who might remove the car and destroy the evidence. Kidnappers were not fully identified yet that time. The car possibly contain the evidence of the Larry Adell was killed by abductors. 

  — search warrant earlier than arrest warrants would be better practice but it does not negate other exigencies justifying a warrantless search of an automobile. 

G.District Court’s Procedure of Making a Record of the Exhibits

   - In the presence of the jury the court read into the record the number and description of all of the exhibits and handled them in such a way that the jury might be able to see them. - prejudice to the defendant. 

   - agreed but the defendants were not prejudiced by the action. 

2. Errors asserted by Inciso. 

A. Adimissibility of Hearsay testimony Concerning Statements of Larry Adell 

  -  Government allowed for limited purpose of showing the “state of mind of Larry”

 (1)Francine Gomez - Date of Larry; stated that Larry told her that he was going to meet Angelo at Sambo’s North at 9:30pm to “pick up a pound of marijuana which Angelo had promised him for free”

 (2)Doug Sendejas - Friend of Larry who was with him at Sambo’s North; stated that Larry said that “he was going to meet Angleo and he’d be right back.”

정부의 변호사는 두가지 이슈와 관련이 있기 때문에 제시했는데 

(1)인시소측이 주장한대로 래리가 자발적으로 없어졌는지 아닌지에 대한 것을 보여주기 위함 - 인시소도 그런 제한적 목적이라면 관련성을 인정한다고 했는데 여기서 만난 사람의 이름을 언급한 것은 배심원에게 편견을 가지게 하기 때문에 지방법원의 제한적 채택이 잘못됐다고 주장

(2)의도했던 대로, 래리가 인시소를 만났다는 것을 보여주기 위함 - 만약에 이 두번째 이론이 성공한다면 첫번째 인시소의 주장은 무효가 됨.

(RULE) Hillmon Doctrine —- Here Inciso objection is that the doctrine concerns its application in situations in which the declarant has stated his intention to do something with another person, and the issue is whether he did so.

Hillmon Doctrine requires that the trier of fact infer from the state of mind of the declarant the probability of a particular act not only by the declarant but also by the other person.  

   Inconsistency of such an inference with the state of mind exception. 

 —-> awkwardness; two statements (1)Larry is going to meet (2) Angelo intended to meet Larry 

지금 이 문장이 예외사항에 걸린 이유는 

화자, 래리가 인시소를 만나러 간다고 했고, 만났는지 안만났는지가 이슈이기 때문에 힐몬 이론에 해당이 된다고 하는데 만약 화자인 래리가 자신의 의도 (state of mind)가 아닌 안젤로를 주어로 “안젤로가 마리화나를 가지고 주차장에 있을것이다” 라고 했다면 이 모든 예외사항에 해당되지 않기 때문에 hearsay 로 미채택이었을 것.

이런 이상함?이 있음. 화자가 자신을 주어로 자신의 얘기를 했기 때문에 채택됐지만, 

누구를 만났는지 아닌지에 대한 증거로 활용되기에는 부족하다는 objection 이 있음

(RULE)California Supreme Court People v. Alcalde; if the declarant is dead, without purporting to “define or summarize all the limitations or restrictions upon the admissibility of such evidence”

*Section 1250 of the California Evidence Code; exception of general hearsay rule = statements of a declarant’s “then existing mental or physical state” …1250(2) Hillmon Doctrine = admissible. Rejected the limitation urged by Inciso.

*Federal Rules of Evidence (were not in force at the time of the trial below)Rule 803(3);

The evidence existing mental, emotional, or physical condition..but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

 Advisory Committee and House Committee addressed doctrine. 

(CONCLUSION) the Hillmon doctrine could be applied to facts to the instant case. Court cannot conclude that the district court erred in allowing the testimony concerning Larry Adell’s statements to be introduced. 

B.Admissibility and Abuse of Hearsay Testimony Concerning Statements of Pheaster

 Mrs. Elmyra Mapes; government witness (1)Pheaster’s statement to Mrs.Mapes which tended to implicate Inciso in the kidnapping scheme. (ISSUE) whether the elements of the co-conspirator exception to the hearsay rule were present (2)Government attorney deliberately distorted Mrs. Mapes testimony 

—Inciso argued basic proposition? Nope ->  foundation requirement that the statements by the hearsay declarant must be made in furtherance of the conspiracy; Pheaster’s statement were not in furtherance of any conspiracy and should not have been admissible against Inciso.  

—> Carbo v. United States; (1)declaration is in furtherance of the conspiracy (2) it was made during the pendency of the conspiracy (3) there is independent proof of the existence of the conspiracy and of the connection of the declarant and the defendant with it. 

—>>whether the Government made a prima facie showing that the statements were “in furtherance of the conspiracy”

—-> Mrs. Mapes was more that disinterested third party. 

(CONCLUSION) the evidence was sufficient to support a finding that the statements had been made in furtherance of the conspiracy. 

—->>the conduct of Government attorney does not constitute reversible error.

—>> No objection from defense side during trial. 

C. Admissibility of Evidence Seized During the Search of Inciso’s Residence

 Items not covered by the warrant and not within any exception to the warrant requirement. 

— no error

D.Rebuttal Testimony of Mr. And Mrs. Adell

• trial court’s discretion- no error

E.Sufficiency of the Evidence to Support Conviction

-whether the evidence was such as to permit a rational conclusion by the trier of fact that the accused was guilty beyond a reasonable doubt. 

Sufficient

7. United States v. Barrett

United States Court of Appeals for the First Circuit 539 F.2d 244(1976)

FACTS

On March 30, 1973, the vault of a museum was burglarized. The perpetrators bypassed the museum's alarm system in a sophisticated manner by using a voltmeter to measure electrical current differences in various wires. Ben Tilley, a known criminal, asked his associate and co-defendant, Kirzner—a Boston coin dealer—to appraise a collection of stolen stamps. Tilley admitted to Kirzner that the stamps had been stolen by his gang. After Kirzner appraised the collection at only $10,000, Arthur “Bucky” Barrett remarked that he “would like to see it returned to the museum.”

Kirzner then contacted Donald Townsend, a coin and stamp dealer in Los Angeles, to inquire if he was interested in purchasing the stamps. Townsend declined but relayed the offer to Michael Bass, who traveled to Boston. Bass agreed to purchase a portion of the stamps for $10,000. He later sold part of the collection and stored the remainder until it was seized by the FBI on May 22–23, 1973.

Barrett and seven co-defendants were indicted on three counts: (1) interstate transportation of stolen postage stamps, (2) sale, and (3) barter and disposal of stolen postage stamps.

By the time of trial, Tilley was deceased.

ISSUE

Was the trial court’s exclusion of defense witness testimony erroneous under the hearsay exception for statements against penal interest?

RULE

Federal Rule of Evidence 804(b)(3) – Statement Against Interest:
A statement is not excluded by the rule against hearsay if:

(A)a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and 

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

APPLICATION

The defense urged in closing argument that Barrett had been deliberately misidentified by Kirzner for ulterior purpose; that (1)Bass’s identification of Barrett was as unreliable as his identification of Tilley (2) that “Buzzy” Adams was fingering “Bucky” Barrett to cover his own participation in the stamp theft. 

(1)Barrett’s Challenge to Adams’ Testimony
Barrett contested the admissibility of testimony by Buzzy Adams, which portrayed Barrett as possessing specialized knowledge of alarm systems. Barrett argued the testimony was irrelevant and prejudicial, as he was charged only with the transportation and sale of stolen stamps—not the burglary itself. However, the court found the testimony admissible, concluding its probative value outweighed the risk of unfair prejudice. Barrett’s knowledge of alarms was deemed relevant to identifying him as a participant in the burglary. The court held that the Government had a right to present probative evidence, even if it cast the defendant in a negative light. 

Conclusion: No error in admitting Adams’ testimony; the trial court properly balanced probative value against prejudicial effect.

(2)Exclusion of Defense Witness Testimony (James Melvin)
The trial court excluded testimony from defense witness James Melvin, who claimed that while with Tilley, he heard Tilley state: “No, Bucky (Barrett) wasn’t involved. It was Buzzy.” Barrett argued this was a statement against Tilley's penal interest and thus admissible under FRE 804(b)(3) and Chambers v. Mississippi. The trial court excluded it as inadmissible hearsay, reasoning that the relevant portion—implicating Buzzy instead of Bucky—was not clearly against Tilley’s interest. However, the appellate court noted that the trial court failed to analyze the second prong of the rule: whether the statement was supported by sufficient corroboration indicating its trustworthiness.

Conclusion: The appellate court found this exclusion erroneous. The court emphasized that such determinations must be made case-by-case, with consideration of constitutional due process principles articulated in Chambers. A new trial was warranted to assess the corroborative reliability of the statement.

(3)Exclusion of Additional Defense Witnesses (Delaney & Kelly)
Barrett also sought to introduce testimony from Thomas J. Delaney and Jeanne Kelly to impeach Adams' credibility. Both would have testified that Adams had previously stated that Barrett was not involved in the crime:

Kelly: “[Adams] knew that Bucky didn’t have anything to do with it.” These were prior inconsistent statements offered to impeach a key prosecution witness.

Conclusion: The exclusion of this impeachment evidence was also erroneous.

CONCLUSION

The First Circuit held that the trial court erred in excluding critical defense witness testimony that may have exculpated the defendant or impeached a key government witness. Although Barrett's challenge to Adams’ testimony failed, the erroneous exclusion of Melvin’s and other defense witnesses' statements required reversal and a new trial.

CLASS NOTE

First Circuit Court of Appeals is in Boston, Massachusetts

G		B
1st Witness - found the vault was robbed	Maneger of the Cardinal Spellman Museum	Testimony of three defense witnesses.	(1)James Melvin (2)Thomas J.Delaney and Jeanne Kelly.
Three witnesses - Implicated Barrett in the burglary and subsequent disposition of the stamps.	Boston Coin dealer (1)Kirzner -codefendant Buyer(2)Bass: Barrett descried the his role in the burglary..(fencing activities 관대한 처분 보장) (3)Adams(Buzzy): convicted burglar and thief (본인과 가족의 안전보장받고 정부측에서 증언)

**Difference between Theft, Robbery and Burglary

Theft

In legislation “a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.” This could mean someone stealing from a shop, picking someone’s pocket, stealing a bicycle or car, an employee stealing from their workplace or a guest stealing something from a house during a party.

The maximum sentence for theft is seven years.

Robbery

The definition as set out in legislation is as follows: “A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person of being then and there subjected to force”.

This can include a street mugging or robbery of a shop, business or security vehicle.

Due to the violent nature of robbery, it is treated as being more serious than theft and the maximum sentence is life.

Burglary

Burglary is committed when an offender either:

1. as a trespasser enters a building intending to steal, inflict grievous bodily harm or do unlawful damage; or,
2. having entered as a trespasser steals or attempts to steal, or inflicts or attempts to inflict grievous bodily harm.  There are three types of burglary recognised in law. These are:

Domestic burglary – Burglary of a dwelling

This type of burglary occurs when an offender enters, as per the definition above, a building which people live in. This generally refers to houses or flats. It also includes boats and vehicles in which people live, such as caravans, and can include domestic outhouses or garages if they are linked to a house.

The maximum sentence is 14 years.

Non-domestic burglary – Burglary of premises other than a dwelling – Theft Act 1968 (s9)

This type of burglary relates to buildings which are not lived in, such as shops or offices.
The maximum sentence is 10 years.

Burglary can be committed when a person is permitted to enter a home or other premises but then goes to a room or area where they are not permitted to be and steals something.  For example, if person steals from items on display in a shop that would be theft, but if they go into a storeroom and steal something, that would be burglary.

Aggravated burglary

This offence is committed when, at the time of a burglary, the offender has with him any firearm or imitation firearm, any weapon of offence or any explosive.

Where a weapon is used to attack someone at the property in the course of the burglary the offender would also normally be charged with an assault offence, or alternatively they could be charged with robbery.

The maximum sentence for aggravated burglary is life.

*testimony by James Melvin - tilley’s statement 

= hearsay

8. Flaminio v. Honda Motor Co. 

United States Court of Appeals for the Seventh Circuit 733 F.2d 463(1984)

FACTS

Flaminio bought high speed motorcycle called Gold Wing from Honda, and got seriously injured while he was checking the wobble when he drove it. And brought a suit for asking damages by the defects of  product to Japanese Honda and American Honda. Plaintiff Flaminio purchased a high-speed motorcycle, the Honda Gold Wing, manufactured by Honda (Japan) and distributed by American Honda. While operating the motorcycle to test for front-end instability (referred to as a "wobble"), Flaminio lost control and suffered serious injuries. He filed a product liability suit against both the Japanese manufacturer and the American distributor, alleging that the motorcycle was defectively designed and unreasonably dangerous.

ISSUE

(1)Is the admission of blueprints permissible under the exception to FRE 407 for proving the feasibility of precautionary measures, if such feasibility is controverted?

(2)Does FRE 407 apply to actions based on strict liability as well as negligence?

RULE

Federal Rule of Evidence 407 – Subsequent Remedial Measures:
Evidence of subsequent measures is not admissible to prove:

negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. 

However, such evidence may be admitted for other purposes, such as impeachment or if disputed proving ownership, control, or the feasibility of precautionary measures.

APPLICATION

(1)Admission of Blueprints:
Plaintiff sought to admit blueprints of a modified version of the Gold Wing to show that safer design alternatives were feasible. However, the defendants did not dispute the feasibility of design changes. Because feasibility was not controverted, the exception under FRE 407 did not apply, and the blueprints were inadmissible for proving a defect.

(2)Application of Rule 407 to Strict Liability:
Plaintiff argued that Rule 407 should not apply in strict liability cases, where the focus is on the product rather than the manufacturer’s conduct.The court rejected this argument, holding that Rule 407 applies equally to both negligence and strict liability theories. The rationale is to encourage manufacturers to improve safety without fear that such changes will be used as evidence of liability.

The court emphasized that the prejudicial effect of admitting subsequent remedial measures outweighed their probative value, especially when feasibility is not contested.

Additional Context:
The court also addressed the technical difference between a "wobble" (a lower-speed instability) and a "weave" (a high-speed instability). Although the Gold Wing was designed for high-speed use, the more dangerous condition—weave—was not adequately addressed by the design. Still, this did not overcome the limitations on admitting subsequent design evidence under Rule 407.

CONCLUSION

The court held that the blueprints were inadmissible under FRE 407 because feasibility was not in dispute. Rule 407 applies to both negligence and strict liability claims. The trial court properly excluded the evidence of subsequent design changes.

Accordingly, the exclusion of the blueprints was affirmed, and no reversible error was found.

NOTE

Wisconsin Comparative Negligence Law: Applies comparative fault principles to strict liability claims, potentially reducing damages based on plaintiff's contributory fault.

Strict Liability – Duty to Warn: A manufacturer may be held strictly liable for failure to warn of dangers inherent in a product that render it unreasonably dangerous to the consumer.

9.United States v. Lipscomb

United States Court of Appeals for the District of Columbia Circuit 702 F.2d 1049(1983)

FACTS

Defendant Lipscomb was charged with distributing heroin. At trial, he did not testify in his own defense. He argued on appeal that the trial court improperly ruled that a prior conviction for heroin distribution, which was less than ten years old, could be used to impeach his credibility under Federal Rule of Evidence 609(a)(1) if he chose to testify.

Lipscomb contended that this ruling deterred him from testifying and therefore violated his rights. He claimed that the trial court did not properly weigh the prejudicial impact of the prior conviction against its probative value as required by Rule 609.

ISSUE

Whether a prior conviction less than ten years old is admissible for impeachment under FRE 609(a)(1), and whether the trial court properly balanced the conviction’s probative value against its prejudicial effect, especially when the conviction does not directly involve dishonesty or false statement.

RULE

Federal Rule of Evidence 609(a)(1):
Evidence of a criminal conviction must be admitted to attack a witness’s character for truthfulness in a criminal case if the crime was punishable by death or imprisonment for more than one year, subject to Rule 403 balancing (i.e., if the probative value outweighs the prejudicial effect to the defendant).

-The nature of the prior crime (whether it bears on truthfulness or credibility)

-The time elapsed since the conviction

-Similarity to the charged offense (which may increase prejudicial effect)

-Importance of the defendant’s testimony

-The centrality of the credibility issue

APPLICATION

The Court emphasized that while not all felonies are equally probative of truthfulness, all convictions meeting Rule 609(a)(1)'s threshold are at least somewhat probative of credibility because they reflect the defendant’s willingness to break the law.

The trial judge has broad discretion to determine what background facts about the prior conviction are necessary for conducting the Rule 403 balancing. In this case, the trial court concluded that the prior heroin conviction was sufficiently probative of Lipscomb’s credibility to be admissible for impeachment purposes. The court also recognized the potential prejudice due to the similarity of the prior and current offenses but found that the probative value nonetheless prevailed.

Importantly, the Court rejected the argument that only crimes involving dishonesty or false statement under FRE 609(a)(2) are admissible for impeachment. Under 609(a)(1), prior felonies—even if not directly related to dishonesty—may still be relevant to credibility.

The Court further held that the trial judge was not required to make detailed findings or a record of the balancing test unless requested, and that there was no abuse of discretion in the trial court's decision here.

CONCLUSION

(1)all convictions that need the Rule 609(a)(1) threshold are at least somewhat probative of credibility; (2)the trial court has discretion to decide how much background information, if any, it needs to perform Rule 609(a)(1)’s balance of probativeness against prejudice to the defendant; (3) the district court dod not abuse its discretion in this case. The Court affirmed the conviction.

Affirmed.

LIVE CLASS - MOOT COURT

Circuit court : Supreme Court - 30mins

Justice can disturb at any time.

Admissibility of prior conviction??

No facts summary - direct argument section to strength opinion 

9 justice - Continue to attack your argument

	circuit court	prosecutor	defendant
balancing test	요구하는 권한이 있다	전과사실 공개	공개 제약 - felony/ 10years
FRE 609	Credibility of Witness 를 공격
			문단 72

*룰이 있는데- 재량권이 있음을 인정하면 룰이 무슨 소용인가

**증거가치가 prejudicial effect 보다 높아야 적용할 수 있는데

*Modified procedure - 10mins of arguments for each party instead 30mins

** Probativness  = to prove something = witness is lying or not

Conversation between prosecutor and judge

Difference between Witness and defendant

Compromised..

House preference is excluding all prior conviction for criminal - credibility

Senate preference is for admitting all prior felony conviction 

10. United States v. Havens

United States Supreme Court 446 U.S. 620(1980)

FACTS 

Respondent Havens was arrested at the airport after customs agents discovered cocaine sewn into a T-shirt found in the luggage of his companion. Havens denied knowledge of the drugs and, on direct examination at trial, testified that he had nothing to do with concealing the drugs and did not provide any materials to his companion.

The government sought to impeach this testimony by introducing evidence—a T-shirt with slits matching the cocaine packets—obtained through an unlawful search of Havens’s luggage, which had previously been suppressed under the exclusionary rule.

The trial court admitted the suppressed evidence solely for impeachment purposes, not as substantive evidence. Havens was convicted. The Court of Appeals reversed, holding that impeachment with unlawfully obtained evidence was not permissible because the cross-examination did not directly contradict Havens’s testimony on direct examination.

ISSUE

May evidence obtained through an unlawful search and seizure, and suppressed for the prosecution's case-in-chief, be admitted to impeach a defendant’s false testimony given during proper cross-examination, even when it does not directly contradict testimony given on direct examination?

RULE

Exclusionary Rule: Evidence obtained in violation of the Fourth Amendment is generally inadmissible at trial.

Impeachment Exception: Under Walder v. United States, 347 U.S. 62 (1954), illegally obtained evidence may be used to impeach the credibility of a defendant who testifies falsely.

The impeachment use must be limited to proper cross-examination and directly related to the defendant’s testimony.

APPLICATION

The Supreme Court reaffirmed that the primary purpose of the exclusionary rule is deterrence, not granting defendants a license to commit perjury.The Court rejected the argument that impeachment use of suppressed evidence is permissible only if the defendant’s falsehood occurs on direct examination.Instead, if the defendant chooses to testify, and during proper cross-examination makes statements that are materially false, then the government may impeach that testimony using evidence otherwise inadmissible under the exclusionary rule.

In this case, Havens’s claim on direct that he had not helped conceal the drugs opened the door for proper cross-examination. His false denial during cross justified the introduction of the suppressed T-shirt evidence to impeach him.

The Court of Appeals erred by requiring a strict match between direct testimony and the cross-examined material.

CONCLUSION

The Supreme Court held that illegally obtained evidence may be used to impeach false testimony by the defendant, even when the falsehood arises during cross-examination, provided that the questioning is within the scope of proper cross and the defendant voluntarily takes the stand.

The decision of the Court of Appeals is reversed.

NOTE

일반적으로는 필요하지만 

Emergence situation 일 경우 search warrant 는 필요하지 않다. 

Agnello v. United States, 269 U.S. 20 (1925)

It is constitutionally impermissible to admit evidence obtained in violation of the 4th Amendment to rebut a defendant’s response to a matter first raised during the Government’s cross-examination. 

소지하는 죄, 수입하는 죄 왜 따로 charge ??

 - 그것만 가지고도 profit 을 만들 수 있기 때문에.

What is the main issue? 

Direct testimony 

Cross examination

Scope = direct 에서 얘기한 것만으로 cross examination 해야함

불법적으로 획득한 증거는 only for the purpose of impeachment of witness’s credibility

11.Texas Department of community affairs v. Budine 

United states Supreme Court 450 U.S. 248 (1981)

FACTS

Repondent has worked for Petitioner, Texas Department of Community Affairs (TDCA) since Jan 1972 as an accounting clerk in the Public Service Careers Division(PSC). She was experienced for several years and promoted to Field Services Coordinator in July 1972. She applied for the supervisor’s position of Project Director, the position remained vacant for 6 months. United States Department of Labor ordered PSC to reorganization of the PSC staff. After consulting with personnel within TDCA, Executive Director of TDCA hired a male from another division of the agency as Projective Director, fired respondent, along with two other employees, and retained another male, Walz, as the only professional employee in the division. Then respondent soon was rehired by TDCA and assigned to another division of the agency. She received the exact salary paid to the Project Director at PSC, and the subsequent promotions she has received have kept her salary and responsibility commensurate with what she would have received had she been appointed Project Director.

ISSUE

Whether after the plaintiff has proved a prima facie case of discriminatory treatment, the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed. 

RULE

McDonnell Douglas Corp. v. Green:

-The plaintiff bears the initial burden of production to establish a prima facie case of discrimination.

-If a prima facie case is made, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action.

-If the defendant meets this burden, the plaintiff must then prove by a preponderance of the evidence that the proffered reason was a pretext for discrimination.

Important Clarification: The burden of persuasion remains with the plaintiff at all times. The employer is only required to produce admissible evidence supporting its nondiscriminatory reason—not to persuade the fact-finder of its truth.

APPLICATION

Prima Facie Case of Discrimination
Burdine established a prima facie case of discrimination by showing that she was a female employee, qualified for the Project Director position, and was denied the promotion in favor of a male candidate. This created an inference of discrimination, as required under McDonnell Douglas.

Defendant’s Burden

Once Burdine proved her prima facie case, the burden shifted to TDCA to articulate a legitimate, nondiscriminatory reason for hiring the male candidate. TDCA explained that the decision was based on organizational restructuring and the male candidate’s superior experience. The Court emphasized that TDCA only needed to provide a non-discriminatory explanation, not prove the decision was the best one or that the male candidate was “more qualified.”

Plaintiff’s Burden to Prove Pretext
After TDCA provided its explanation, Burdine had the opportunity to show that the reasons given were a pretext for discrimination. However, the Court found that she did not provide enough evidence to show the explanation was false or discriminatory. The fact that TDCA hired the male candidate based on experience and restructuring decisions was a legitimate, nondiscriminatory reason.

Burden of Persuasion
The Court clarified that the burden of persuasion remains on the plaintiff throughout the case. It’s not enough for the defendant to merely explain its actions; the plaintiff must prove by a preponderance of the evidence that the reasons were a pretext for discrimination.

CONCLUSION

Vacated and remanded. 

NOTE

원고 주장 : 성차별에 의한 직장해고 사건 - 원고(respondent) 가 연방법원으로 소송 -Title Vll of the Civil Rights Act of 1964

A. District Court 는 피고의 Fuller  증언이 원고의 주장을 충분히 반박했다고 판결

: 3명이 같이 어울리지 못했고 그것을 개선하는 것이 일의 효율성을 높일 것이라고 판단. 그 설명을 받아들였고 그녀를 승진시키지 않은 것과 해고한 것에 성차별이 있었다는 증거 찾지 못함

B. Court of Appeal 은 이 판결을 뒤짚고, 승진에 관해서는 남자가 project director 로 뽑인게 더 원고보다 더 qualified 되었기 때문이라는 것에 확실한 에러사항이 없다 고로 1심의 판결 인정. 하지만 피고가 prima facie case 에 대항해서 증거가 충분하지 않았다. burden of prove 를 만족하지 못했다

—burden of proving by a preponderance of the evidence the existence of legitimate, 차별아니었던 이유… 반대증거 즉, 고용된 사람들이 원고보다 더 qualified 였다는— 만족하지 못했다.

이 해석이 우리 선례와 충돌하기 때문에 granted certiorari. 결론은 vacated and remanded for application of the correct standard.

Prima facie case of discrimination 이 되려면

(1)they are a member of a protected group, such as a group based on race, sex, age, disability, national origin, or pregnancy

(2)they were qualified for the position they applied for

(3)they were subjected to an adverse employment action, such as being denied a promotion or being fired

(4)there is a casual connection between their membership is the protected group and the adverse employment action

Burden of production 

is part of the burden of proof, which also includes the burden of persuasion

A party’s obligation to provide enough evidence to support a claim or defense. It’s also known as the “burden of going forward with evidence”

Burden of persuasion

a party’s obligation to convince the fact finder to view the facts in a way favorable to them. 

Burden of proof

A party’s obligation to prove a charge, allegation, or defense. It’s known as the burden of truth. 

The burden of proof and production differ in civil and criminal cases:

Civil cases

The plaintiff must prove their right to compensation, typically by a preponderance of the evidence

Criminal cases

The prosecution must prove the defendant’s guilt beyond a reasonable doubt. This is the highest penalty imposed in the justice system. 

“Prima facie case” => it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection. 

=> 

아 prima facie 면 inference of discrimination - 그런일이 있었다. - impermissible factors 고려X

**burden of proof 가 어디 있는지를 두고 싸우는 것.

피고가 그걸 못했기 때문에 증명 못했다고 판결된 것을

룰을 잘못해석했다고 보고 룰 해석을 다시 해준 다음 재심판결.