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Evidence Outline - Professor Tilly - Campbell Law - Part 9

By Miller Moreau
Professor Tilly - 2020

Download the PDF version of this outline

< Part 8 | Part 10 >

1. Privilege
  1. Witness (except criminal D) needs to invoke privilege in front of the judge.
  2. Threat to invoke privilege is not enough; call witness to the stand and have him/her invoke.
  3. Common privileges: Spousal, 5th Amendment
    1. Must be ACTUAL marriage for spousal to apply
      1. No longer valid once divorced
  4. Can be waived
    1. I.E. – if claiming medical damages → dr. testifies to past conditions, etc.
2. Refusal to Testify
  1. Must call the witness and have him/her refuse in court. Judge will then order witness to testify or face contempt.
  2. If witness still will not testify after contempt, then he/she is unavailable
  3. Threatening to refuse is not enough.
3. Lack of Memory
  1. Must be total lack of memory as to the event in question.
    1. Not about full or substantially accurate memory → must not be able to remember subject matter at all
      1. Even if he doesn’t remember the statement at issue → still may be available if he remembers the subject matter
  2. Must call the witness at trial;
    1. pre-trial statement of lack of memory is not sufficient.
4. Death, Infirmity, Physical/Mental Illness
  1. Then existing infirmity/illness (physical or mental) must be so severe that witness can’t appear to testify and little likelihood of recovery in near future
    1. Must be at the time of the trial!!
  2. No reasonable likelihood they’ll get better soon
    1. If major witness → can continue case for awhile
5. Absent Witness
  1. Unknown Whereabouts: Must make reasonable efforts to locate
    1. Subpoena; search efforts; calling family, etc.
    2. Should offer to pay for travel
  2. Known but unable to compel attendance
    1. I.E. – witness is outside of jurisdiction and is refusing to attend
      1. Must still show efforts!
      2. No need to subpoena if out of range
        1. If in range? → hard to show reasonable efforts without subpoena
      3. * typically higher burden for prosecutors to prove this than others
      4. “Is absent from the trial or hearing and the statement’s proponent has not been able to procure attendance or testimony, by process or other reasonable means”
        1. (5)(A) Former Testimony Exception → procuring attendance is only requirement to try and make
        2. 5(B) All other exceptions → must try to procure attendance and testimony before claiming one of those exceptions
          1. I.E. – If someone can’t attend → you still have to try and conduct a deposition (get testimony)
            1. Can even require lawyer to be the one to travel to try and get the testimony
          2. Applies to dying declarations; statements against interest; and statements of family/personal history.

**** can’t establish unavailability if proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying

FRE 804(b)(6) Statement Offered Against a Party that Wrongfully Caused the Declarant’s Unavailability: Not hearsay: A statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant’s unavailability as a witness, and did so intending that result.

  1. Actions must be intentional and wrongful with the intent to prevent the witness from testifying
    1. Doesn’t necessarily have to be bad- (Luke Combs “deep sea fishin out in Panama”)
      1. Judge Forever Dever: “you can attract bees with honey or vinegar”
    2. Mere negligence to keep witness in custody is not enough
  2. Giles v. CA, D prosecuted for killing wife, prosecutor tries to get in statement made to her from weeks prior under this rule (don’t think other hearsay exception applied) to prove intent → Court: No, wrongdoing must be designed to prevent testimony- need intent
  3. Waives confrontation clause protection as well.
  4. “Acquiesced” I.E. – US v. Cherry protections waived if preponderance of evidence shows:
    1. the defendant participated directly in planning or procuring the declarant's unavailability through wrongdoing, or
    2. that the wrongful procurement was in furtherance, within the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy. (*note- this is the same standard for waiving confrontation clause protection)

Feaster: Court failed to properly establish unavailability. Judge should have made a 104(a) ruling as to Oscar Mitchell’s availability. If defense used private investigator—would likely need to bring that PI before the judge to explain the efforts that had been made to try to locate Oscar

  • But- calling prosecutor for help is NOT a necessary step

FRE 804(b)(1): Former Testimony: Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross-, or redirect examination.


  • Unavailable
  • Testimony
    • Prior proceeding
    • Under oath
    • On the record
  • Offered against party who had:
    • Opportunity to develop through CX, direct, or redirect
    • Similar motive to develop
    • By the party against whom it is offered
      • Don’t worry about “predecessor in interest” for civil case

“Opportunity to develop” doesn’t mean it was taken, just had the opportunity

  • I.E. – lawyer doesn’t cross exam → still had opportunity
  • But- D often has no opportunity to cross exam grand jury testimony
    • But D can use that testimony against pros. b/c dumbass prosecutor developed it through direct
      • Note- keep in mind this exception is based on opportunity to develop in any way. Not limited to cross exam like others

“Similar motive to develop” is broad

  • General rule: when the issue to which the testimony related at the former hearing is substantially identical to the issue in the present proceeding
  • Differences as to lawyering tactics do not change this
    • I.E. – limiting cross examination in discovery proceeding based on strategy of doing it later → still had similar motive

Trayvon Martin’s family sues George Zimmerman for the wrongful death of their son. During the course of the trial, they attempt to locate Jane Surdyka to testify on behalf of the plaintiff. Ms. Surdyka previously testified under oath at the Zimmerman murder trial that she observed an altercation wherein an older “man” used angry, aggressive words and the voice of a “boy” could be heard saying, “help, help, help.” Plaintiff ’s counsel has tried to locate Ms. Surdyka but after the murder trial she sold her condo and has not been seen since testifying. Google searches, private investigations and calls to friends and relatives have been fruitless. During the current wrongful death trial, plaintiff ’s counsel offers Ms. Surdyka’s prior testimony from the prior state murder trial. Defense counsel objects, “hearsay!”

  • During criminal case, Zimmerman had similar motive & opportunity to develop through cross → admitted

Trayvon Martin’s family sues George Zimmerman for the wrongful death of their son. During the course of the trial, Zimmerman’s defense counsel attempts to locate John Goode to testify on behalf of the defendant. Mr. Goode previously testified under oath for the defense at the Zimmerman state criminal trial. On direct examination he had said that he observed an altercation wherein it appeared that a person in a grey, hooded shirt was on top of and physically striking a person in a red jacket. Defense counsel has tried to locate Mr. Goode to testify again but he sold his condo and has not been seen since testifying in the murder trial. Google searches, private investigators and calls to relatives have been fruitless. During the wrongful death trial, defense counsel offers Mr. Goode’s testimony from the prior state murder trial. Plaintiff ’s counsel objects, “hearsay!”

  • Admissible- Prosecutor was predecessor in interest and had opportunity to cross
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