Evidence Outline

I. INTRO TO EVIDENCE
Spring 2014
A. GENERALLY
1. Evidence = what you can show the jury at a trial and why
a. Who can speak, who is excluded, other objects
b. NOT about legal standards, i.e., Burden of Proof or how to prove a case, or sufficiency of evidence
c. most evidence rules tend to be separated into rules of relevance, rules of reliability or privileged evidence, which is
evidence that is excluded even though it's otherwise relevant and reliable
2. interpreting FRE's 3 parts of every rule:
a. the text of the rule
(1) this is the most important part! duh
b. the Advisory Committee Notes
(1) not that important outside of Sup. Ct. cases
c. the legislative history
(1) not required for us to know in as much depth
B. MISC. GROUND RULES
1. 102 = allows judges to overlook rules if following would cause injustice
2. 104(a) = preliminary questions of admissibility
a. the issue of admissibility is decided solely by the judge the jury can reject the judges findings (e.g. that someone is
qualified to be an expert)
b. the law provides that Boot-Strapping is permissible --> can use contested evidence to prove the admissibility of the
contested evidence, BUT the contested evidence cannot be the only proof of its admissibility
(1) evidence to prove the preliminary facts doesnt need to be admissible itself to be considered
c. preponderance standard higher than 104(b) standard for conditional relevance
d. covers everything but 104(b) (conditional relevance evidence)
3. 105 = limiting instructions
a. when evidence is admissible for one purpose but not another, the court, on request, shall restrict the evidence to its
proper scope and instruct the jury accordingly
C. JUROR TESTIMONY FRE 606(b)
1. generally: a verdict may only be overturned for improper outside influences --> jurors are NOT allowed to testify about
their deliberations in a trial that they're deciding/deliberating
a. this only applies to jurors --> anyone else is able to testify (but as not to the words spoken), e.g., a waiter who served
jurors wine during trial
2. jurors CANNOT testify as to: (almost everything)
a. any jurors mental process;
b. any matter or statement occurring during the course of deliberations; or
c. the effect of anything upon that or any other jurors mind or emotions
d. see TEXT, FRE 606(b)(1)
3. jurors CAN testify as to: (3 exceptions)
a. extraneous prejudicial info improperly brought to jury
(1) if a juror knew about litigation and did his own experiment or investigation, this info cannot be presented to the
jury during deliberations
b. outside influence was improperly brought to bear upon any juror
(1) this is not just info or intoxicants
(2) can be an ACTOR acting on jury/jurors (e.g., threats, overbearing, etc.)
c. mistakes made in entering verdict
d. see TEXT, FRE 606(b)(2)
4. HYPO: D charged with stabbing dad to death. D admits he bought the knife used, but lost it beforehand. Juror brought his
own knife into deliberation to show other jurors. This is NOT OK.
a. Inadmissible:
(1) Testimony juror misunderstood evidence
(2) Juror(s) thought D's invocation of 5th Amend. = guilt
(3) Weak coercion
(4) Premature deliberations
b. Admissible:
(1) Threats
(2) Bribes
(3) Experiments/Independent research
(4) Preconceived assignment of fault (very difficult to prove)
(5) Mistake on the verdict form

5. policy considerations:
a. why have FRE 606(b)?
(1) avoid harassment of jurors
(a) jurors dont usually like to serve anyway
(b) it is inconvenient
(c) dont want to have to make tough decision
(2) finality --> want trial to be over, want to limit bonus hearings
(3) faith in the system (i.e., the "black box" argument)
(a) "black box" around the jury want to remain believable that Jurors are trying hard
(4) jurors' privacy
b. why NOT have this rule?
(1) mistakes/bad stuff is kept hidden
(2) allows the 6th Amend. to be violated and D has no remedy (see Tanner)
6. Tanner v. US Ct. establishes a broad definition of "jury deliberations" and refuses to take actions since the issue could have
been properly addressed during the trial --> jury testimony about deliberations is not admissible even when a juror is
prepared to testify concerning the use of drugs during a trial
a. shows the blind faith in juries after the fact
(1) very hard to attack jury finding (usually attack judicial decisions)
(2) if the FRE isn't in your favor, you can try using the 6th Amend. to attack the jury's findings as an end run play
this usually isn't successful, though
II. RELEVANCE
A. THE BASICS
1. FRE 401 = defines "relevance" generally
a. evidence is relevant if:
(1) it's probative --> 401(a): it has any tendency to make a fact more or less probable than it would be w/o the
evidence; and
(a) this is a very lenient/liberal standard of "probativeness" b/c evidence doesn't have to prove anything
conclusively to be "relevant," it just has to have some tendency to make a fact more or less probable
I. the former common law rules were much less liberal b/c they didn't allow as much evidence to be
considered "relevant"
II. "a brick is not a wall" --> a fact can be one "brick" in the chain of inference in proving guilt, and thus
relevant, BUT it's not the whole "wall" of guilt b/c the fact, standing alone, doesn't prove the D's guilt
entirely/by itself
(b) statements don't have to be true to be relevant --> even false statements can be relevant if they show that the
speaker was acting suspiciously or had suspiciously specific knowledge of the crime
(2) it's material --> 401(b): the fact is of consequence in determining the action
(a) i.e., "materiality" means that the jury should care about this evidence for some reason
2. FRE 402 (admissibility) = establishes the basic principle that evidence isn't admissible if not relevant, but typically is
admissible if relevant
a. see TEXT, FRE 402
b. how to address a question of evidence admissibility:
(1) WHAT is the evidence at issue?
(a) in James, evidence at issue = ct. docs re: vic's prior arrest record
(2) WHO is offering it?
(a) in James, the D was offering it
(3) WHY is that person offering it?
(a) in James, D was offering the evidence to corroborate the credibility/reasonableness of her fear of the vic
3. US v. James (1999) --> victim (D's bf) had told D he'd committed several very violent acts in the past which caused D to be
afraid of him; D's daughter shot vic while he was in a drunken rage and D was convicted of aiding & abetting manslaughter for
handing her the gun; D claimed she only handed over the gun to help deter/scare vic away b/c she knew how violent he could
be; trial ct. said evidence that vic really was violent was irrelevant, thus, should be excluded; D appealed
a. basically: conviction reversed b/c app. ct. thought the evidence of vic's past violence was relevant and should've been
admitted --> the crux of D's defense rested on her credibility and this could be corroborated through the excluded
evidence, so exclusion of the evidence was prejudicial to her and probably affected the verdict
(1) materiality = the excluded docs were material b/c they did help prove D's state of mind (reasonably fearful) at the
time she handed over the gun, even though she had no idea they existed
(2) probativeness = vic was more likely to say he robbed an old man at knifepoint if he really did, and the fact that
he actually committed such a crime therefore made it more likely that D was telling the truth when she said vic
told her about the crime (don't know if I really follow this reasoningthis is premised on the fact that people will
instinctually tell the truth when that's no always so[see bottom of pg. 33])

b. Issue: Whether court documents about Vs criminal past were admissible to corroborate Ds defense that he had told
her these crazy stories.
Justification for her testimony that he told her the stories: s/d is based on reasonable belief, so it is irrelevant whether
he actually did.
Prosecution argued the evidence was inadmissible because his criminal history is immaterial and because she had never
seen the documents.
Defense: Documents make it more probable that she is telling the truth.
Holding: real question is did he tell gf that he committed crimes?
If her statements are true, it makes her s/d claim successful.
If she is lying, she probs just wants to get out of a murder rap.
It is more plausible that V bragged about these crimes if he actually did them.
Thus, the evidence should be allowed in
per T-burg: also shows propensity evidence since he also did these other things, it is more likely that he was violent
and dangerous on that night as well.
this kind of evidence is usually prohibited
Kleinfeld dissent: actually based on 403 (D usually makes the 403 arguments)
403: excluded evidencewaste of time, prejudicial
balancing test b/tw probative and prejudicial
D is making a needs killin argument
c. RULE = facts concerning the violent criminal record of the victim are relevant b/c they show it's more probable that the
victim informed the D of the violent history if it's actually true
B. CONDITIONAL RELEVANCE
1. FRE 104(b) = says that evidence may be relevant, but only if another given fact is true by a preponderance of the evidence
a. Rule applies when party wants to admit A, but A is only relevant if B is true
b. TEXT: "Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed
evidence on the condition that the proof be introduced later."
c. rationale = the chain of inferences leading from the contested fact to the conclusion of the D's guilt is severed if the
conditional fact is not established
(1) however, in reality, every chain of inferences has potential missing links that could be subject to a conditional
relevance attack
2. conditional evidence is admissible when:
a. Judge decides there is enough supporting evidence that a reasonable juror could conclude that the condition was true by
a preponderance of the evidence ("PPE")
(1) for proof to be "sufficient to support a finding" the judge has to find that a reasonable juror could believe that
the condition was satisfied
a.k.a. the Huddleston standard
(2) procedural note: after prosecution has presented evidence in a trial, defense can move for a directed verdict if "no
reasonable juror" could believe that D committed the crime based on the evidence presented
b. NOTE (from T-burg): instead of having to convince the judge that your fact is true, you need only convince the judge
that some other fact-finder (i.e., a juror) could reasonably believe the fact to be true. Once the evidence gets to the jury,
the jury is allowed to decide what it's worth.
3. 401 vs. 104(b)
a. practically speaking, 104(b) is not that much of a higher standard than "any tendency to make a fact more/less probable"
from FRE 401(a)
b. under 104(b), the judge will have to think a little harder about whether to admit the contested evidence, but they will
still probably let the evidence in under both standards
4. Cox v. State --> D convicted of killing victim who had gotten D's friend sent to prison
a. basically: D's conviction upheld based on ct.'s finding that evidence that D knew of victim's testimony against his friend at
a hearing was relevant, could thus serve as basis for establishing/inferring motive for D's actions
(1) the relevance of the testimony depended upon a condition of fact --> whether or not D knew about what
happened at the bail bond hearing
(a) relevant if = D knew of the hearing b/c that would be "extremely probative" of the State's theory re: D's
motive
(b) irrelevant if = D didn't know of the hearing b/c PO's testimony would then be unfairly prejudicial
(2) STANDARD: the standard for deciding if FRE 104(b) applies to determine relevance of certain evidence is that "the
judge must determine only that a reasonable jury could make the requisite factual determination based on the
evidence before it"
(a) this makes FRE 104(b) a pretty low standard of proof

C. UNFAIR PREJUDICE
1. FRE 403 = says that relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice (in
the trial ct.'s discretion)
a. this is essentially an exception to FRE 402, saying that ct. may exclude relevant evidence if the evidence poses problems
that "substantially outweigh" its PV
b. NOTE: FRE 403 is kind of a last resort for someone trying to get some evidence excluded --> often used as a last step
when every other option has failed
c. standard of review on appeal = can only be overturned for abuse of trial ct. discretion
2. TEXT: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence."
a. "The court may exclude"
(1) this makes the Rule pretty liberal re: allowing in as much evidence as possible
(2) exclusion under FRE 403 is in the trial judge's discretion and reviewable on appeal only for abuse of discretion
b. "if its probative value is substantially outweighed by"
(1) also makes Rule pretty liberal re: allowing in evidence b/c the "evil" in allowing the evidence has to substantially
outweigh its probative value --> equalling the probative value or only slightly outweighing it is not enough to justify
exclusion
c. "a danger ofunfair prejudice"
(1) relevant evidence is inherently prejudicial, so only unfair prejudice that substantially outweighs probative
value justifies exclusion
(a) evidence must be so unfairly prejudicial that it's PV/relevance is outweighed by the prejudice it would create
against D
(2) in assessing a 403 claim, judge has to balance what is good about the evidence (it's probative value "PV") against
what's bad about it (the unfair prejudice)
(a) NOTE: review of judge's decision is only for abuse of discretion (so it's not likely to get overturned)
(3) It is only when a fact finder might react to aspects of evidence in a way that is NOT supposed to be part of the
evaluative process that the reaction is considered unfair prejudice."
d. "a danger ofconfusing the issues, misleading the jury"
(1) distracting the jury from the task at hand may be enough to exclude evidence
(2) can also be that a juror would give a piece of evidence undue weight in consideration
e. "a danger of[1] undue delay, [2] wasting time, or [3] needlessly presenting cumulative evidence."
(1) even sheer waste of time may be enough to justify exclusion (e.g., if prosecution wants to bring in 15 witnesses
that will testify to the exact same, easily-established fact, the judge might say 14 of the witnesses' PV is outweighed)
3. purpose of Rule
a. the main quibble people have w/unfairly prejudicial evidence is that it causes the jury to make a decision based on
illogical, emotional responses
(1) however, judges still want to allow in as much probative evidence as possible, so they will usually allow in such
evidence
4. photos & other inflammatory evidence
a. defense strategy = if judge is going to allow it in, make sure he/she does things such as:
(1) give good jury instructions re: the importance photos should have on jury decision-making
(2) limit the number of photographs shown
(3) limit the size of the photos
(4) limit amount of time jury can see them
(5) make prosecution present the photos in black & white
(6) voir dire --> try to keep out especially sensitive jurors (ask them if they've been victims of a violent crime, etc.)
b. State v. Bocharski (2001) --> jurors were shown several gruesome and graphic photographs of the victim's body in various
states of decomp and during autopsy; D objected on appeal that pics shouldn't have been allowed b/c they were unfairly
prejudicial and only intended to "inflame the passions of the jury" against him
(1) basically: app. ct. held that although 2 of the photographs had insufficient probative value so as to make them
relevant (i.e., the trial ct. erred in admitting those particular pics), those pics didn't actually affect the jury's verdict
("harmless error"), i.e., no harm, no foul
(a) holding #1 = murder is gruesome, and the pictures of the body are highly probative (and persuasive)
I. D argued that pics were not probative b/c D already conceded that the lady was stabbed to death
II. if a D isn't contesting that a fact is "of consequence," then an otherwise-relevant exhibit's PV may be
minimal --> i.e., if a D isn't really contesting the subject of a gristly pic, is there really a need for the
prosecution to show it in the first place?
III. if D agrees/stipulates that a fact demonstrated by a gruesome photo is true, that doesn't mean that the PV
of that photo evidence is zero --> such evidence can still have some relevance b/c it helps the prosecution
prove their case against D

(b) holding #2 = pictures of the skull w/rods should have been excluded b/c they were not probative -->
Prosecution never gave testimony concerning the angles of the knife and/or their significance
I. here, the pics were more prejudicial than probative.
c. Commonwealth v. Serge (2006) --> the State's use of a computer generated animation ("CGA") to demonstrate their
experts' opinions as to how a murder occurred were upheld on appeal; just b/c certain evidence is super persuasive
doesn't make it unfairly prejudicial so long as it was presented in a "fair and accurate" way
(1) CGA can only be used to display a theory of the case supported by evidence and testimony
(a) here, ct. allowed the video as it was devoid of drama so as to prevent the jury from improperly relying on an
emotional basis.
(2) use of a CGA is not unfairly prejudicial just b/c the state has the budget to hire a CGA creator and the D does not
(a) "unequal access to resources" isn't really a 403 argument at all, it's a Const. due process argument (D's have
"right to a fair trial," etc.)
(3) NOTE: prosecution will say that this is an animation of what actually happened, but actually, this is really just a
video representation of what the expert witness thinks happened
d. US v. James (1999), cont. [DISSENT] --> argues that the trial ct. was w/in its discretion in excluding the evidence b/c it's
possible the prejudice of portraying the vic as bad or violent person would have unfairly, emotionally influenced the jury
(1) dissent argued that evidence of vic's past violent actions should be inadmissible as unfairly prejudicial --> only real
reason D wanted this admitted was b/c she was just trying to make the vic look bad in a "that man needed killin'
defense" kind of way
(2) SIDE NOTE: this case was unusual in that the prosecution was trying to keep evidence out of ct. using 403 -->
usually it's the D trying to use 403 to keep out unfairly prejudicial evidence
(a) this case also shows how one story can be told much differently by 2 different parties
5. summary of FRE 403 generally
a. FRE 403 favors admissibility of relevant evidence, even if prejudicial, confusing, or duplicative.
b. However, FRE 403 grants judges discretion to exclude relevant evidence if PV is substantially outweighed by unfair
prejudice, confusion, or duplication.
c. Analyze evidence sought to be excluded under FRE 403 very carefully to place it in the right category
d. Particularly in the case of alleged unfairly prejudicial evidence, compare its effect to alternative methods of proof of the
same facts
D. EVIDENCE OF FLIGHT
1. generally: evidence of flight is admissible as relevant to guilt consciousness of guilt
a. why is evidence of flight relevant?
(1) it can be seen as an indication of D's consciousness of guilt b/c innocent people usually don't flee from law
enforcement --> i.e., it's more probable that it is true that D committed the crime b/c he ran from the police
(a) assumes that fact is a crime
(2) per T-burg: in his opinion, the PV of evidence of flight is kind of low b/c the defense atty can just say this evidence
is grasping at straws ("You're saying my client robbed a bank, but don't you have any real evidence of the bank
robbery? Using EoF is weak circumstantial evidence at best.")
(a) most judges will allow this evidence in b/c it's perceived as kind of "no harm, no foul"(???) --> also, app. cts. are
just generally reluctant to find an abuse of trial ct. discretion
b. what is unfairly prejudicial about evidence of flight info?
(1) on the one hand, if D has an innocent reason for flight, he could simply present that reason to the jury to explain
his behavior
(2) however, if his "innocent" reason is b/c he has priors and doesn't want to be implicated, he would be forced to
disclose this unrelated info to explain himself, and that info could in turn harm his defense b/c the explanation
would cause the jury to be even more prejudiced against D
(a) Ex: "I wasn't running b/c I felt guilty of murder, I was running b/c I had pot in my pocket."
(b) this unfairly forces D to present evidence of a bad act to rebut evidence of another bad act --> it's just a nowin situation for D
c. what about evidence of staying put? [see Prob. 1.11, pg. 65]
(1) prosecutor --> would want to say there's low PV in this evidence b/c D wouldn't have a good reason to run b/c
running would just make him look guilty and he'd probably be caught anyway, plus he has limited resources to flee
and his family was in that town
(2) defense --> would want to say there's high PV in this evidence b/c his staying indicates a consciousness of
innocence
(3) 403 analysis --> at least some small amount of PV to the evidence and there's only a small likelihood of prejudice
to the prosecution in allowing the evidence
(a) evidence of non-flight does not often come into ct. if challenged --> based on confusion of issues or waste of
time rationale

(4) NOTE: cts. are more hesitant to allow evidence of staying put b/c it has a weaker PV --> there are many reasons
why a person chooses to stay put besides a consciousness of innocence
2. US v. Myers (1978) --> standing alone, evidence of flight is not supposed to be definitive proof of guilt, although it may serve
as evidence of D's "consciousness of guilt" in light of all the circumstances
a. the PV of evidence of flight as an admission of guilt depends on 4 inferences:
(1) D's behavior = flight
(a) the thing that D did was actually "flight"
(b) has to be flight from the law
(c) contested here b/c only 1 PO testified about D's "flight," his testimony was somewhat iffy ("D moved 3 ft." vs.
"D moved 50 yards"), and D might not have even realized he was fleeing from law enforcement (agent's never
said they were LE and tried to run D's vehicle off the road)
(2) flight = consciousness of guilt
(a) flight under these circumstances indicates consciousness of guilt
(b) we infer/assume that people run from the cops b/c they know they're guilty
(c) evidence of flight cannot definitively prove guilt --> we accept it as evidence b/c it is probative in that it helps
to establish another "guilt" fact (i.e., it helps establish that D has a consciousness of guilt, which is a fact that
can prove guilt)
(d) how probative evidence of flight is will depend on the length of time b/tw the crime and the D's
action/behavior
(3) consciousness of guilt = consciousness of guilt concerning the crime charged
(a) D's consciousness of guilt is guilt for the crime that is actually being prosecuted
(b) contested here b/c it was not established that D was guilty about the FL robbery (the one being prosecuted) -> he could have been feeling guilty about a different robbery in PA
(c) probativeness could also be conditionally relevant (i.e., "evidence of flight is only relevant if it was b/c of guilt
for this crime") --> FRE 104(b)
(4) consciousness of guilt concerning the crime charged = actual guilt of crime charged
(a) that consciousness of guilt under these circumstances indicates actual guilt
(b) D probably wouldn't believe that he is guilty of the crime being prosecuted unless he actually is guilty of that
crime
(c) this isn't always an accurate inference b/c D could be confused about his own guilt due to mental illness, police
coercion during interrogation, etc.
(5) key factors to consider:
(a) the time b/tw the conduct and the crime (the sooner in time the stronger the inference)
(b) ability of the D to provide an alt. explanation (WITHOUT disclosing another bad act)
(c) the link b/tw the crime and the flight
b. RULE = the judge may instruct the jury to consider evidence of D's flight as consciousness-of-guilt evidence ONLY IF
evidence is "sufficient to furnish reasonable support for all 4 of the necessary reasonable inferences"
(1) here, prosecution didn't have enough evidence to sufficiently support the 1st inference nor the 3rd inference so the
jury instruction re: evidence of D's flight was improper
(a) 1st inference = not enough conclusive evidence to show that D was actually trying to flee --> State's witness
(Agent Hanlon) had only offered inconclusive & conflicting testimony relating to the PA robbery
(b) 3rd inference = even if D did try to flee, State didn't prove that his guilt stemmed from the FL and PA
robberies or just the PA robbery alone --> D's guilt for this case would've had to stem from the FL and PA
robberies, but the State had only offered evidence relating to the PA robbery
(2) "The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the
likelihood that it resulted from something other than feelings of guilt concerning that offense." [pg. 62]
E. PROBABILITY EVIDENCE
1. generally: There is no inherent incompatibility between mathematics and the law --> just have to be extra careful with
mathematic testimony
a. statistics come in all the time (re: DNA), but testimony cannot be there is a 99% chance that these two were the
perpetrators --> DNA evidence is usually quite accurate and it the person who ran the tests can testify as to their
methods used, etc.
(1) as such, the PV is pretty low, but can be highly prejudicial
(2) most cts. are cautious w/regard to scientific or technical material when they think members of a jury will have
difficulty in adopting a critical stance toward it
b. re: foundational facts --> make sure it is laid; the UP increases if a sufficient foundation is NOT laid
(1) "the difference b/tw casting a spell and casting a light turns on the soundness of the math, the accuracy of the
underlying facts, and the ability of jurors to assess defects beyond the math." [pg. 80]

2. probability evidence & relevance

a. People v. Collins (1968) --> witness may have seen a couple mug an old lady, where the woman was a blonde, the man was
black, and they were driving a yellow car; Prosecutor presented evidence from a mathematician that there was a
1:12,000 chance that it was anyone but this couple who met those characteristics
(1) problems w/this mathematical reasoning of D's guilt:
(a) prosecutor essentially made up the figures used to calculate the probability (prosecutor offered no evidence
that 1/10 automobiles are yellow, 1/4 men have mustaches, etc. were accurate figures)
(b) the variables (woman w/blonde hair, black man w/mustache, etc.) were not truly independent, which made the
calculation inaccurate/unreliable
(c) correlation causation --> just b/c there were a small number of couples that would meet all of the relevant
characteristics, that doesn't prove that this particular couple was the couple who committed the crime
(d) statistical evidence cannot prove that the witnesses made accurate observations
(e) most juries (and atty's) don't have the mathematical knowledge w/which to cross-examine such evidence to
determine its accuracy
(f) presenting these kind of mathematical "facts" can cause a jury to convict D based on blind faith in math rather
than based on moral certainty of guilt --> this creates unfair prejudice (403) b/c it convinces the jury to
disregard the actual standard of proof
(2) "The testimony and the manner in which the prosecution used it distracted the jury from its proper and requisite
function of weighing the evidence on the issue of guilt, encouraged them to rely upon an engaging but logically
irrelevant expert demonstration, foreclosed the possibility of an effective defense by an atty apparently unschooled
in mathematical
refinements, and placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable
theory."
(a) i.e., prosecutor persuaded the jury to disregard the actual standard (proof beyond a reasonable doubt)
(3) math is fine so long as it's use has PV, it's accurate, and it's not unfairly prejudicial to the D
(a) "probabilistic evidence poses a risk of unfair prejudice when it is wrong--when it rests either on false data or
mistaken mathematical principles--and when jurors and defense counsel can't spy those flaws." [pg. 80]
F. STIPULATIONS
1. what is a stipulation?
a. parties agree to agree (i.e., to stipulate) as to the veracity of a certain fact, and b/c both parties will not challenge it, they
agree to not bring it up in ct. other than to say that fact is true (they won't elaborate on it or bother with proving it)
b. "collateral evidence" = this is evidence that is stuff not directly related to the crime at issue (sort ofperipheral
facts) --> if something is "collateral evidence," usually means that you can win w/o proving that evidence
2. effect of stipulations on the 403 analysis:
a. the parties can stipulate to certain facts in order to reduce the UP of some evidence (or to avoid wasting time)
(1) the PV of something that's already been proven is low, BUT this doesn't mean the PV is zero --> the govt can still
introduce evidence related to the stipulation (i.e., even if D stipulates that victim died, govt can still show pictures
of the body)
(2) stipulations can, to a strong extent, decrease the PV of evidence and force evidence to fail the FRE 403 analysis
(Old Chief)
(3) policy: the more facts/story involved in the contested evidence, the higher the PV
b. a ct. may reject the stipulation to allow the govt to try its case as it sees fit
(1) usually, the prosecution will still get to tell their story the way they want to (Old Chief is a narrow exception)
c. drawbacks of stipulations: [from Jackson]
(1) they can leave a misleading presentation to the jury
(2) fact may slip out anyway
(3) jurors may realize something is missing and fill in the blanks themselves
3. US v. Jackson (1975) --> D was on trial for bank robbery in GA and motioned to exclude evidence that he'd used a false name
on being arrested shortly after the robbery b/c its PV was outweighed by unfair prejudice
a. to defend against the negative inference such evidence would have created in the jurors' minds, D would've had to admit
to at least 2 other (unrelated) bad acts
b. judge granted the motion to exclude the evidence (b/c he agreed that it would lead to unfair prejudice AND it would be
a waste of time to talk about it), BUT only on the condition that D agree to a stipulation that he was indeed in GA
shortly after the robbery and that while there he used a fake name (but at least he didn't have to explain why he was
there and prosecution couldn't admit evidence of his other crimes)
c. Considerations to make in 403 analysis: the delay in the completion of the trial which will necessarily be occasioned by
the calling of at least one witnesswho may be subjected to cross. There is also the complex issues respecting the
legality of the [other] arrestthough the court [found that arrest valid].
4. Old Chief v. US (1997) --> D was charged w/possessing a gun in violation of a fed. statute that prohibited this (b/c he had a
prior fed. conviction carrying a sentence of greater than 1 year in prison); D motioned to exclude evidence of a prior offense

(assault w/intent to cause s/b/h) on condition that he stipulate that he had conviction for offense carrying a sentence of
greater than 1 year in prison; trial ct. disagreed and allowed in evidence of what kind of crime it was; D appealed due to the
UP this evidence created
a. crime was "felon in possession (of a firearm)" but it was technically "[someone previously convicted of a crime carrying
penalty > 1 year] in possession"
(1) detailed evidence of D's prior crime would be unfair "propensity evidence" (a.k.a. inadmissible character evidence)
--> this evidence would make jurors think that D had a propensity to commit crime, convict him w/o real evidence
b. prosecution argued the old legal principle that the prosecution has the right to put on its own case the way it chooses
w/o manipulative influence of stipulations made by the D (even though here, prosecution was probably just trying to
sneak in character evidence)
(1) what's a legit reason the prosecution might want this evidence admitted?
(a) prosecutor could say that stipulations make it hard to tell the jury the story of what happened in an
understandable way (b/c stipulations leave gaps in the story)
(b) jury may be morally hesitant to find someone guilty if they feel they're not getting the whole truth
c. however, since D was willing to stipulate, the PV of the prior offense evidence was very low and the govt was unable to
introduce the prior bad act
d. RULE: Ct. held that where the contested evidence of a prior offense is only necessary to prove D's legal status in re: the
current offense, the prosecution cannot use that evidence if the D agrees to a stipulation establishing his legal status
(1) this is a very narrow rule! --> prosecutors could use this case to justify denying a stipulation in almost any other
situation
(2) as a result, the prosecution was barred from presenting evidence of D's prior conviction and was forced to accept
a stipulation that D had a legal status prohibiting ownership or possession of a firearm
III. SPECIALIZED RELEVANCE RULES
A. generally: FRE's 407-411 automatically
bar certain kinds of evidence w/o need
to do a FRE 403 analysis (i.e., they
automatically fail a 403 analysis as a
matter of law)
1. all of these [1] concern evidence
w/relatively low PV and/or high risk
of unfair prejudice, (i.e., in all of
these cases, the UP outweighs the
PV of the evidence), AND [2]
serving some kind of public policy
purpose --> [see CB pgs. 96-97 for
charts]
a. NOTE: while the evidence may
seem to be excluded on its face,
the underlying policy behind the
Rule may not apply, so the
evidence may be able to come in
(1) even though these are
"default" rules regarding
their topics, still always
complete a 403 analysis!!
even if the Specialized Relevance rulings do not bar evidence, the ct. may still refuse to admit the evidence upon
a determination that the UP substantially outweighs the PV
b. per T-burg: the pub. pol. rationale is probably more important/compelling than the low PV rationale
2. "French rules" vs. "German rules"
a. "French rules" = FRE's 407, 408, 409, and 411 prohibit only certain uses of the evidence they govern, while allowing all
other uses
b. "German rules" = FRE 410 prohibits all uses and has only two narrow windows of admissibility
3. general analysis ask:
a. what evidence does the Rule cover?
b. for what purpose is it inadmissible?
c. is it admissible for any other purpose(s)?
4. why not just let judges deal w/these issues using 403 on a case-by-case basis?
a. would give too much discretion to judges
b. would lead to a loss of predictability
c. trial prep would become too complex
d. would slow the efficiency of the ct. system (more than it already does)

e. would probably require that we have different civil and criminal rules b/c criminal D's have diff. rights than civil D's
f. NOTE: even if the specialized relevance Rules don't bar evidence, the ct. may still refuse to admit the evidence upon a
determination that the UP substantially outweighs the PV
B. SUBSEQUENT REMEDIAL MEASURES FRE 407
1. FRE 407 = says that evidence of subsequent remedial measures taken by D are inadmissible to prove D's culpability --> this
is a "French rule" in that everything is allowed unless the Rules specifically say it's barred
a. see TEXT, FRE 407
b. so you CAN'T use evidence of SRM's to prove:
(1) D's negligence
(a) irrelevant if the crime is a strict liability crime (e.g., if it's a SL negligence crime to have a wild animal in that
state, see Problem 2.1 on pg. 99)
(2) D's culpable conduct
(3) defect in D's product or design
(4) need for D to give a warning or instruction
(5) NOTE: these are itemized in the Rule b/c people try to use them all the time and the writers wanted to remove all
doubt
c. exceptions:
(1) evidence of SRM's is allowed only if one of the following is in dispute:
(a) feasibility --> was it feasible for D to have taken the SRM before the accident/injury occurred?
I. 2 competing definitions of feasibility: (Tuer)
A. narrow = this action is not physically, technologically or economically possible under the
circumstances then pertaining
B. broad = includes the motives, explanations and includes that which is capable of being utilized
successfully (i.e., the peep hole example)
II. under broader definition, it's easier for a D to dispute the feasibility of a measure, thus the remedial
measure evidence is more likely to come in
(b) impeachment --> the SRM proves that D lied about some other testimony given
(c) proving control/ownership --> the SRM proves that D had/has control or ownership over the thing or person
that caused harm (thus, they are the correct person to be suing)
(2) NOTE: one of these factors must actually be in dispute to allow in the evidence or else the exceptions would
swallow the rule
2. rationales for Rule:
a. relevance --> subsequent remedial measures have little relevance in assessing D's culpability or fault, and such measures
not an actual admission of guilt
b. public policy --> we should encourage (or at least not discourage/punish) people to take corrective action after
experiencing some kind of accident (i.e., we want to reward good behavior and allowing evidence of changes made as
result of an accident would discourage such behavior)
3. Tuer v. McDonald (1997) --> P sued D for med. mal. when P's husband died; D had given husband some stabilization meds
before surgery, but had a practice of discontinuing those meds a few hours before surgery due to a higher perceived risk of
other complications (i.e., D judged that the risk of continuing the meds was higher than the risk of discontinuing them); after
husband's death, D reevaluated this policy and thereafter decided to continue such meds right up until surgeries
a. P wanted to have evidence of D's change in policy admitted under the "feasibility" exception to FRE 407 (i.e., P wanted to
imply that "this protocol change is evidence of D's guilt in my husband's case" using the excuse that she was just trying to
get evidence of the feasibility of using the meds in her husband's case)
b. basically: ct. said this did not fall under the "feasibility" exception to FRE 407, thus the evidence was not admissible
(1) at least in a medical context, "feasibility" has to mean more than that D is disputing whether it was physically
possible to have acted differently (here, to have administered the meds in husband's case) --> it has to mean that D
is disputing whether it was a good idea to have acted differently
(a) ct. used a narrow definition of "feasibility" rather than broad definition, BUT this case is only binding precedent
in parts of Maryland
(2) "The fact that the protocol was changed changed following [husband's] death in no way suggests that [D] did not
honestly believe that his judgment call was appropriate at the time[just that D] reevaluated the relative risks in
light of [husband's death] and decided the safer course was to" continue the meds until surgery
(a) mere denial of liability is not impeachable with evidence of SRM (e.g., "You said you weren't liable, but now
you admit you could have done something else" = not admissible)
(3) ct. found that this evidence did not actually impeach Drs statements and was therefore inadmissible
(a) D stated that he believed, at the time, it would be unsafe to restart the meds; changing the hospital policy in
no way impeaches that testimony --> to do so, we'd need evidence that he did not believe it was unsafe to
restart the medication that day

4. 3rd-party repairs
a. evidence of subsequent remedial measures/later repair undertaken by a someone other than D is not barred by FRE 407,
although such evidence usually is considered irrelevant b/c it doesn't have enough PV to get past FRE 403
C. COMPROMISE & OFFERS TO COMPROMISE FRE 408
1. FRE 408 = says that evidence of compromise and/or offers to compromise is inadmissible, except that evidence of offers to
compromise/negotiate w/a gov't agency is admissible (in criminal investigations) --> this is a "French rule" in that everything is
allowed unless the Rules specifically say it's barred
a. see TEXT, FRE 408(a)-(b)
b. so you CAN'T use evidence of compromise/offers to compromise to prove:
(1) admission of liability
(2) amount of liability
(3) to impeach a witness
(4) NOTE: Rule covers conduct and statements made during compromise negotiations
(a) Rule also usually covers/applies to similar statements made to 3rd parties (b/c of interest in promoting the
"encourage settlement" rationale)
c. NOTE: evidence has to involve negotiations in a disputed claim for 408 to apply --> if no claim has yet been made AND
disputed when the offer/negotiations occur, the evidence would be admissible! --> [see "CLAIM" on pgs. 117-18]
(1) doesnt have to actually be a lawsuit, but a demand letter would suffice
(2) if the offer is made at the initial accident, it is admissible
d. exceptions:
(1) evidence of offers to compromise in negotiations w/public agency in a criminal investigation is admissible --> FRE
408(a)(2)
(a) actual compromises cant be used by govt officials in criminal prosecution, but statements made ancillary to
compromise CAN come in
(2) permitted uses = anything not listed in 408(a)
(a) Ex: proving a witness bias or prejudice, negating a contention of undue delay, and proving an effort to
obstruct a criminal investigation or prosecution.
(3) can be used to prevent extortion or correct false impression/injustice
(4) facts disclosed during negotiations can still be used if you can find independent evidence/support --> the
underlying truth is still usable
2. rationales for Rule:
a. public policy --> we want to encourage free negotiation and settlement to resolve disputes outside of litigation (i.e., we
want to encourage people already in litigation to settle)
b. relevance --> offers to compromise aren't that probative (although the higher the amount of the offer, the more
probative it becomes)
(1) risk of UP in allowing this evidence is not that high --> most normal people would feel bad when an accident
occurs
3. Bankcard America, Inc. v. Universal Bankcard Systems, Inc. (2000) --> noncompete covenant K dispute b/tw parties; during
settlement negotiations, D's president received info to the effect that D could continue doing business as usual (i.e., breaching
his K w/P). Turns out he was wrong and P tried to use evidence of poaching at trial. Negotiations broke down and P sought
to argue that D's business was illegal and at the same time block mentioning of the settlement negotiation. D wanted to
admit statements from negotiation to show that he was authorized (by P) to breach the K at the time. Should the dist. ct.
have allowed the evidence of negotiations?
a. ct. ruled that it was unfair for P to use the rule to harm the D --> evidence should be admissible b/c P lured D into the
breach and then wants to use that against them at trial
(1) policy behind rule is to encourage open and honest settlement, not to allow trickery
(2) you cant seduce other side into doing something and then use it against them
b. Rule cannot be used as both a shield and a sword --> "busted deal, face the wheel"
(1) BUT, there's not really a textual defense for what they do here, it's mainly b/c it offends the judges sense of justice
c. 408(a)(2) conduct or statements made in compromise negotiation regarding the claim
(1) Ct. can say that is evidence is not the claimthe claim is a prior breach of K and this evidence is about a
subsequent breach
D. OFFERS TO PAY MEDICAL & SIMILAR EXPENSES FRE 409
1. FRE 409 = says that evidence of D's offers to pay medical (or similar) expenses is inadmissible to prove D's liability --> this
is a "French rule" in that everything is allowed unless the Rules specifically say it's barred
a. TEXT: Evidence of furnishing, promising to pay or offering to pay medical, hospital, or similar expenses resulting from an
injury is not admissible to prove liability for the injury.
b. Rule concerns statements made outside of negotiations
(1) does NOT cover other, incidental statements or admissions
(a) Ex: I'm sorry I ran the light and hit you. Ill pay for your dr. bills

10

I. under 409, the admission of fault is admissible, just not the offer of payment
II. the admission of fault is NOT barred by 408 b/c there's not yet a claim UNLESS the victim immediately said
they're going to sue (before the person said, "I'm sorry")
(2) per T-burg: the risk of UP in allowing this is really low, so if we didn't have FRE 409, we would always allow this
kind of evidence
2. doctor apologies for med mal accidents:
a. some statutes encourage doctors who make mistakes to apologize to their patients and offer their services to correct
the malpractice claim
(1) some studies show that if a doc just apologies, this decreases the likelihood of expensive malpractice suits
b. however, such statutes aren't nearly as comprehensive a "shield" for docs as they sound --> apologies may decrease # of
lawsuits, but if there is a lawsuit, doc could get hit with an even bigger penalty
3. rationales for Rule:
a. public policy --> encourage people to be generous and help others (i.e., we don't want to punish people for their
humane instincts)
(1) BUT, since most people don't know the Rule, they dont want to --> dont want to punish people for humane
instincts, but since most people dont know this Rule, to exclude other statements would be a windfall
b. relevance --> "let me take care of your treatment" may only be the product of "humane impulses" (thus, not really very
probative of negligence); "I'm sorry I ran the light, let me take care of your treatment" sounds more like a genuine
admission of fault (thus, is very probative of negligence)
(1) but isn't this the same reasoning applied in FRE 408 context?
E. LIABILITY INSURANCE FRE 411
1. FRE 411 = says that evidence of a party's liability ins. info is not admissible to prove whether the person acted negligently or
otherwise wrongfully --> this is a "French rule" in that everything is allowed unless the Rules specifically say it's barred
a. TEXT: Liability Insurance. Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another
purpose, such as proving a witnesss bias or prejudice or proving agency, ownership, or control.
b. evidence is NOT allowed to prove:
(1) whether the person acted negligently or wrongfully
(2) what if the driver didn't have ins. and the state wants to prosecute them for driving w/o ins. and the state requires
all drivers to have ins. (b/c it is negligent to drive w/o ins. in a state that requires drivers to have ins.)?
c. exceptions:
(1) evidence of ins. is allowed for pretty much any other purpose other than just proving that D had ins.! (Williams v.
McCoy)
(2) evidence of liability ins. is allowed to show proof of agency, ownership, or control, bias, or prejudice of a witness
(3) evidence of the existence of an ins. policy may be used to show things like ins. fraud
(a) the Rule only covers evidence of liability ins., not things like fire ins., and not liability ins. for things that are not
the subject of the case at issue (e.g., has to relate to liability ins. for slip-and-falls rather than for collapsing
ceiling tiles)
(b) Ex: "Sue burned down her pizzeria for the ins. $$" hypo --> ins. co. could introduce evidence that Sue took
out an unusually high fire ins. policy right before her pizzeria burned down
2. Williams v. McCoy (2001) --> P was in car accident w/D; before P had seen a doctor, D's ins. co. came to P and told her to
take their settlement offer w/o seeking an atty; P subsequently got an atty and sued D; at trial, D wanted to characterize P as
overly litigious by highlighting that she'd gotten an atty before even seeing a doctor; P wanted to explain the situation, but the
ct. said she couldn't testify about her convo w/D's ins. co. b/c that would reference liability ins. in violation of FRE 411
a. P appealed, arguing that not allowing her testimony was unfairly prejudicial and it should've been admitted b/c it was for
another purpose other than just proving the existence of the liability ins. (i.e., ct. abused their discretion in not admitting
her testimony)
b. app. ct. said trial ct. should've allowed her testimony b/c it was probative and unfairly prejudicial to exclude it (403
analysis)
(1) was this actually evidence that FRE 411 actually addresses? --> technically, yes, it did prove that D had liability ins.
(but that's not why she wanted to use the evidence)
(2) ct. allowed the evidence of the communications w/D's liability ins. co. even over the FRE 403 objection b/c it was
important to the case and not meant to prove D had ins. --> P was not trying to use the evidence to prove D had
ins., but to rebut D's arguments against her
3. rationales for Rule:
a. relevance --> carrying ins. has very low PV, and very high UP (b/c jury is likely to assign blame to the person w/deep
pockets)
(1) dont want the jury to think:
(a) that b/c the person had ins. they are less likely to care about the consequences (i.e., "This person was neg. b/c
they knew they had ins., so they didn't care if they hurt people")
(b) the damage award amount can be increased b/c insurance will pay for it

11

(2) per T-burg: this is a situation where UP really does exist b/c it's really unfair for someone to be found guilty just
b/c the jury thinks they can afford to pay for the damages (this is a good 403 argument)
(3) however, studies suggest that jurors consider ins. all the time in deliberations (even when told not to) b/c it's
something w/which they have had personal experience
b. public policy --> we want to encourage people to carry ins.
(1) per T-burg: he thinks this is a weak argument b/c people are usually not influenced by rules of evidence (i.e., the
FRE isn't going to make anyone go out and buy ins.)
(a) more likely reason = in theory, not having this Rule would drive up prices for everyone b/c the ins. companies
would up their costs to account for higher settlements
(b) also, we just care about fairness and we think this Rule promotes fairness --> we don't want to give P's an
unfair windfall just b/c jurors think D's ins. co. will pay for their damages
(2) having a bright line Rule also allows for more predictability for lawyers
F. PLEAS, PLEA DISCUSSIONS, & RELATED STATEMENTS FRE 410
1. FRE 410 = says that evidence of D's statements made during plea discussions is always barred except where specifically
permitted --> this is a "German rule" in that nothing is ever allowed unless the Rules specifically allow for an exception
a. see TEXT, FRE 410(a)-(b)
b. prosecution CAN'T use evidence of stmts. in plea negotiations to prove:
(1) withdrawn guilty pleas, nolo contendere (no contest) pleas, plea discussions, or Rule 11 conferences
cannot use
these in any capacity (i.e., there is no "room around the box"), BUT does not cover an actual guilty plea
(2) in other words, prosecution CAN'T use: the act of a guilty plea, the act of a no contest plea, statements made
to a judge in a formal hearing, statements made to the prosecutor in a plea hearing --> unless one of these are used
for a purpose specifically listed in an exception
c. exceptions:
(1) if one statement from the negotiation is admitted, others can also be admitted if, in fairness, the statements ought
to be considered together (i.e., a "fairness exception")
(a) evidence CAN come in if D is the one offering it, BUT this opens the door so to speak so that govt can
now bring in other statements from the negotiation (Biaggi)
I. rationale = there is very little UP when the evidence is used against the govt
(b) logically, only a D could use this b/c no one else could introduce it against him (evidence "is not admissible
against the D"), BUT once D talks about such evidence, the prosecution can use it however it wants
(2) evidence may be used in a later perjury prosecution (if statement was made under oath, on the record, in presence
of counsel)
(a) prosecution would be offering the evidence as proof that D made the statement itself, not to prove whether it
was true or not
(b) govt is also able to condition the plea bargaining so that statements are later available for impeachment uses
2. issues:
a. D must first establish that he's actually offering info during "plea discussions"
(1) informal discussions and unilateral offers of info don't count --> Rule only covers stmts. made during an actual plea
negotiation
(a) there's a reason the Miranda warnings say "anything you say can and will be used against you" --> b/c it's true!
(b) we're ok w/allowing in evidence of statements made to PO's b/c we (allegedly) have other procedural
protections for D's when they're talking to cops
(2) technically, it's not a "plea discussion" unless the D is talking to a prosecutor
b. technically, the Rule only shields discussions with/stmts. to prosecutors
(1) if D's just talking to a random PO or agent, 410 protections may not apply
(2) some cts. don't follow this quite so strictly --> if D had a reasonable, subjective belief that the person was
authorized to offer them a deal, that may be enough for 410 protections to kick in
3. rationales for Rule:
a. public policy --> we want to encourage plea bargaining, which can also increase D's honesty and willingness to work
w/prosecution in prosecuting his cohorts
(1) also want to promote predictability of the bargaining process
(2) per T-burg: the real reason we have this Rule is to encourage guilty pleas and speedy/efficient adjudication
b. relevance --> a D who's not even guilty might take/offer a plea deal to avoid the risk of losing at trial (or getting a
greater penalty)
(1) PV of this evidence is pretty high, but the UP is also pretty high, and some D's might not even know what they're
doing when they plead guilty
4. US v. Biaggi (1991) --> D was on trial for criminal fraud re: some Defense Dept. K's (or something similar); the gov't offered
him immunity if he agreed to testify against his co-D's, but he was subsequently tried; D claimed he'd rejected the offer b/c he
was innocent and had no info to relay; the gov't claimed they'd withdrawn the offer b/c he said he had no info to give; trial ct.
said evidence of the immunity negotiations b/tw D and the gov't were inadmissible based on FRE 410 and for irrelevance (403
analysis)

12

a. app. ct. held that the evidence of negotiations should've been admitted
(1) 411 rationale = rejecting an offer of immunity in this situation is highly probative as to D's consciousness of
innocence (b/c most people would jump at the chance to get immunity if they could) and it should be up to the
jury to decide whether or not they make this inference
(a) also, this Rule is intended to be a "shield" for the D, not for the gov't ("not admissible against the
defendant")
(2) 403 rationale = evidence was relevant to D's case b/c it had high PV re: D's consciousness of innocence &
credibility
b. evidence that's not being offered against the D is usually going to be allowed in --> this evidence was being offered by D
against the gov't
(1) there's also not a huge danger of UP to the gov't in allowing the evidence in
IV. CHARACTER EVIDENCE
A. generally: still under the umbrella of Relevance --> when does a Ws character make what they are testifying to now more or
less probable?
1. FRE 404 = says that evidence that a person has a particular character trait is generally not admissible to show that the
person acted in accordance w/that trait at a particular time --> evidence of a "crime, wrong, or other act" is NOT admissible
to prove D acted in accordance w/a certain character trait on the day in question
a. Ex: accused rapist says "because this woman wanted to sleep with other people in the past, she must have wanted to
sleep with me this time" <-- evidence of victim's former sex partners is prohibited by 404
b. see TEXT, FRE 404(a)-(b)
2. evidence need not be bad and it need not be prior to the matter at issue in the current case to be inadmissible under
this Rule --> evidence of any other acts that speak to D's character, whether wrong or prior, are not admissible
a. Ex: "once a cyclist, always a cyclist" is still inadmissible propensity evidence [see Prob. 3.8, pg. 170]
b. also, there has to actually be another act for this Rule to apply --> if the evidence is part of the same act as some
admissible evidence, 404 probably will not be a bar to admission b/c there's no "other act" to deny admission to
(1) Ex: TV station worker running like a maniac through the TV station to get a tape to the control room in time and
accidentally hits a baby --> can't make part of her run inadmissible b/c the run was all one act
c. NOTE: character evidence MAY be admitted to prove other things such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident, BUT must pass a FRE 403 test --> these are
"routes around the box"
(1) this only bans that one use for such evidence, it does not ban using such evidence for other purposes, e.g., those
discussed in 404(b)(2)
3. rationale:
a. such info may be relevant (i.e., there is PV), but it's problematic b/c it can cause so much UP to D that it will overwhelm
the jury --> 403 analysis is already done and it is presumed as a matter of law that propensity evidence will cause UP
(1) risk that jury will give excessive weight to "the vicious record of crimeand allow it to bear too strongly on the
present charge"
(2) risk that jury will punish D b/c they think a man of "vicious and dangerous" propensities is better kept off the
streets even if not guilty for the crime charged (a.k.a. "preventative conviction")
b. also, risk that arguing about such evidence will confuse the jury and waste time
c. thus, this character evidence is put into a "black box" and the prosecution may not lead the jury on a chain of inferences
that goes through the box
4. People v. Zackowitz (1930) --> while drunk, D had shot and killed a man whom he thought had insulted his wife; D was
convicted of premeditated murder largely based on evidence that he had a substantial collection of firearms in his home
(implying that he had a "vicious and dangerous" character), though he'd only had one small pistol in his pocket at the time
a. on appeal, app. ct. reversed based on the fact that this kind of character evidence is not supposed to be admissible to
prove guilt
b. app. ct. noted that there was no real reason to admit the evidence of D's other guns except to make the jury think he
was a "vicious and dangerous" man --> showing evidence of the other guns did nothing to prove any elements of the
crime charged
c. dissent: argued that the existence of the other weapons was needed for the prosecution to show its narrative of the D's
actions (this isn't the most compelling argument)
B. THE "PROPENSITY BOX" & ROUTES AROUND IT
1. FRE 404(b) = says that character evidence may be used for basically any purpose other than to prove that D acted in
accordance with a certain character trait on the particular occasion in question; this part is kind of superfluous b/c 404(a)(1)
only bans one use for such evidence --> this Rule just clarifies the meaning of 404(a)(1)
a. NOTE: these aren't really exceptions to 404(a)(1), they're just other possible (allowed) uses for propensity evidence
(1) there are other exceptions that are actually called "exceptions" --> the actual exceptions are routes directly through
the box rather than around it

13

b. how to address a 404 objection:

(1) why does the party want the evidence admitted?
(a) is it to show character evidence? this isn't allowed, BUT
(b) is there a route around the propensity box that could get it admitted?
(2) if you don't want it admitted, ask, does it have PV and little or no UP? (403 argument)
(3) if it's going to be admitted, what can the objecting party ask for/do to limit it's UP?
(a) ask the judge to give jury instructions limiting the UP of the evidence
(b) maybe try to offer up some stipulations
c. character evidence flowchart:

2. so character evidence IS admissible to prove:

a. KNOWLEDGE = evidence should be admitted to prove that D did or did not have the knowledge necessary to
commit the crime
(1) can also prove capacity & ability --> if the knowledge is specialized and only a few people possess it, then the
character evidence is likely admissible to show that the D is one of a very few; must also be knowledge necessary to
the commission of the crime
(a) Ex: in complex computer hacking scandal, a subsequent computer hacking scam by D could be admissible to
show that D possesses the knowledge to pull off this type of thing [problem 3.1, pg. 165]
(b) Ex: can use proof that D was drunk at work to show that empR knew D was an alcoholic, but cannot use it
prove that D was drunk on the occasion at issue. [problem 3.3, pg. 166]
(2) however, knowledge of general reputation cannot be used to show conformity with the reputation at a specific
time
b. MOTIVE = evidence of past acts helps to establish a motive for why D did or didn't know something
(1) evidence of a failure to adhere to rules, such as a bus not stopping at drop-off point when requested to do so, can
be motive of intent to not stop at the drop-off points
(2) Ex: ct. would likely allow evidence that D was wanted on an attempted murder charge and knew that PO were
looking for him; this proves motive [problem 3.4, pg. 167]
c. IDENTITY ("modus operandi") = evidence of D's past crimes is so unique that "this could not be anyone else's crime"
(1) NOTE: identity is kind of a hard route to take around the box b/c prosecution can almost always argue that past
crimes prove D's identity, but this can obviously be very pretextual
(2) proving a "signature crime" --> prosecution must show that the crime was "sufficiently idiosyncratic" and so unusual
that it couldn't have been anyone else (Trenkler)
(a) the evidence of the "signature crime" can't just be a list of "prosaic commonalities" (i.e., it can't just be a bunch
of garden variety similarities)
(3) M.O./signature/identity evidence is different from propensity evidence
(a) proponent of the evidence is arguing that D has a distinct way of doing things, and this way is very unique.
(b) it follows, then, that because both of these crime were done in such a unique manner, D did both of them
(c) must have a reference class --> what is the sample type and sized looked at for previous instances of similar
actions?
(4) US v. Trenkler (1995) --> D was accused of building a bomb for a friend who wanted to murder his father, which
ended up killing 2 fed. agents; D had previously been convicted of building a somewhat similar bomb for another

14

friend several years before; comparing the 2 bombs based on info found in an ATF database, the prosecution's
expert witness testified that he was absolutely certain that the same person had made both bombs; D appealed,
arguing that the evidence of the earlier bomb should not have been admitted
(a) evidence is admissible under FRE 404(b) only when the evidence is determined to have some special
relevance (e.g., it proves identity, motive) independent of its tendency to show criminal propensity, on a
material issue, unless the PV of the evidence is substantially outweighed by the danger of UP --> here, there
was such a special relevance with respect to the evidence and a reasonable jury could have determined that
the same person was responsible for both bombs
(b) dissent: govt searched for some very generic (and relatively few) bomb characteristics, and the gov't expert
only searched for the specific characteristics that would make sure to match up the 2 bombs
(5) "reverse 404(b)" argument = D argues that if the crimes are similar enough that the same person must have
committed them, and another victim already said D didn't do it, then D must be innocent
(a) D wants to offer evidence of his own other acts to prove his innocence in the current case; usually comes into
play when D claims his identity was mistaken and he wants to offer evidence of someone else's acts b/c it
shows that they could've done it
(b) D's sometimes think they can use this to present raw propensity evidence about another person to argue that
the other person must have committed the crime, but this is not allowed --> that's still a "through the box"
argument, even though it's about someone else [problem 3.9, pg. 188]
(c) US v. Stevens (1991) --> D wanted to use reverse FRE 404(b) evidence to show that a similar crime was
orchestrated in close proximity to the crime the D was charged with where the D was not identified as the
perpetrator
I. D argues that if the crimes are similar enough that the same person must have committed them, and
another victim already said D didn't do it, then D must be innocent
II. ct. held that there's no risk of UP when the D is the one who wants to enter this evidence, so the ct. just
has to assess the relevance and PV of the evidence vs. other considerations such as undue waste of time
and confusion of the issues
III. it's much easier for the D to get this evidence in
A. there's a really low risk of UP to the gov't in most cases
B. D can introduce it so long as its PV is not substantially outweighed by other 403 considerations (e.g.,
must be relevant, must have PV)
C. D does NOT have to prove a signature crime on the part of a 3d party to introduce the evidence
d. NARRATIVE INTEGRITY
(1) Two Tests: Inexplicably intertwined (DeGeorge)
(a) If evidence constitutes a part of the transaction that serves as the basis for the criminal charge < OR >
(b) When necessary to do so in order to permit the govt to offer a coherent and comprehensible story
regarding the commission of the crime.
(2) Ex: where Ds defense to a crime is that he didnt own the gun, the ct. allowed evidence from an ex-girlfriend
about a time when he threatened her with it. It goes to ownership, and the context of the threat makes the story
flow more smoothly
(a) 3 years ago, D was playing Russian roulette and pointed a gun at witness's head; D doesn't want her to tell jury
why she remembers his gun so clearly b/c of UP; if she can't explain why she was playing a lot of attention to
the gun, witness's testimony will not make a lot of sense (i.e., if she isn't allowed to tell the whole story), and
the PV of the evidence is reduced [Prob. 3.10, pg. 189]
(3) US v. DeGeorge (2004) --> prosecution wants to put on evidence that like the D's current boats, 3 others
mysteriously sank and allowed D to collect insurance money; Prosecution argues that the entire history of the
other boats sinking goes toward the narrative of the case
(a) ct. allowed a limited admission --> prosecution could present evidence that D had ins. on 3 prior boat and all
of those previous boats sank, BUT can't mention that he collected ins. payments on those boats
e. ABSENCE OF ACCIDENT/MISTAKE & DOCTRINE OF CHANCES = essentially, the theory is What are the
chances that this would happen to the same person this many times?
(1) either this person must be guilty OR they're very unlucky
(a) like signature crimes, if it can be proven that replication is substantially unlikely, Doctrine of Chances can let
the evidence in (i.e.,"1x is an accident, 30x is probably intentional" argument)
(b) the PV of this kind of evidence depends on "the unusualness of the occurrence and the number of times it was
repeated. Each additional case increased the improbability of accident." (Rex v. Smith)
(c) NOTE: this is a controversial Doctrine b/c it relies on the belief that multiple misfortunes, if similar and rare,
are not likely to happen to the same person repeatedly and therefore suggest guilt because of the unlikelihood
of innocence
(2) Ex: prosecution's argument = if D had really killed his first wife by accident while cleaning his gun, D would have
acted more carefully if this had really happened before, therefore his story is not plausible [problem 3.11, pg.
193]

15

(3) Rex v. Smith (1915) --> D (husband) claims that, like his 2 previous wives, his 3rd wife died by accidentally drowning
in the bathtub; all 3 wives died shortly after he'd taken out life ins. policies on them; D wants to prohibit the
prosecution from bringing in the evidence of the 2 prior drownings
(a) ct. ruled that the evidence cannot be entered to show propensity, but can be entered to show that the
chances of 3 wealthy wives all drowning in the bathtub are slim
f. COMMON PLAN or SCHEME = to show a global, overarching plan behind a series of offenses
(1) cannot just be a string of similar offenses --> must be an actual, cohesive plan
(2) is sometimes used in domestic violence to show husbands plan to control wife
g. INTENT = showing past acts to support an inference, not based on character or propensity, that D had the same
intent on each occasion, to prove Ds intent regarding the crime on trial
h. OPPORTUNITY & PREPARATION
C. THE HUDDLESTON STANDARD & ROUTES AROUND THE BOX
1. generally: for proof to be "sufficient to support a finding" the judge has to find that a reasonable juror could believe that
the condition was satisfied
a. if prior bad acts evidence comes in as around the box, a jury must be able to reasonably find that the act happened
evidence of D's propensity can be admitted "around the box" if it has some kind of conditional relevance
(1) Judge just decides the threshold question: if a reasonably jury could find the evidence to be true, she should let it in
--> jury can then decide whether or not the past act happened
(2) Cf. conditional relevance --> past act evidence is only relevant to its offered purpose if it actually happened.
b. remember, FRE 104(b) says:
"Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must
be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the
condition that the proof be introduced later."
2. Huddleston v. US (1988) --> D was on trial for selling/possessing stolen appliances. D doesnt dispute that he sold the items,
but maintains that he did not know they were stolen. Govt wanted to introduce evidence of other times that he sold stolen
goods from the same guy in the past.
a. Govt argues that this evidence in highly relevant to the knowledge element of the crime (not propensity) (this is his
route around the box).
(1) The fact that he had obtained stolen goods from this guy in the past coupled with other circumstantial evidence
(the low prices) makes it very hard to believe that D didnt know they were stolen.
(2) Could also go to willful blindness
b. govt has pretty weak evidence. It is also conditional. Februarys sales are only relevant if you believe that the goods
were stolen.
(1) here, the relevance of the Feb. incident was conditional upon proving that the goods were stolen
c. standard = in order to introduce this type of information if the jury can reasonably find that the conditional relevant fact
was true --> if the jury could believe it, the judge should let it in
d. NOTE: past acquittal of a crime does NOT preclude its admission into evidence [Problem 3.13]
3. [SHOULD PROBABLY RE-READ THISI DON'T THINK I EVER READ IT THE FIRST TIME...]
D. PROPENSITY EVIDENCE IN SEXUAL ASSAULT CASES FRE 413-415
1. generally: 413-415 are actual exceptions to the ban on propensity evidence, not just "routes around the box"
a. were enacted as part of the Violent Crime Control & Law Enforcement Act of 1994; they permit prosecutors and civil
P's to offer evidence of the D's other acts of sexual assault or child molestation "on any matter to which it is relevant"
b. this evidence is still subject to a 403 analysis
(1) In other respects, the general standards of the rules of evidence continue to apply, including restrictions on
hearsay evidence and the courts authority under 403 to exclude evidence whose PV is outweighed by its UP.
(Floor statement from Rep. Molinari)
(2) US v. Guardia (10th Cir. 1998) --> crazy gyno was inappropriately touching patients; govt charged him on 2 counts
and wanted to admit evidence from 4 other alleged witnesses/victims' testimony
(a) ct. excludes the evidence b/c for each W, there would need to be at least one expert W (to assess the proper
medical standard used by D), and this would be cumulative and a waste of time under FRE 403
I. D argued that the testimony of prior victims violates 403
II. Prosecution countered by arguing that FRE 413-415 are meant to modify 403 and therefore the evidence
should be allowed w/a 403 analysis
III. ct. ruled that 413-415 modify FRE 404(b) and therefore the cts. must still apply an 403 analysis even after
applying 413-415
c. policy debate
(1) pro:
(a) can lead to more convictions when identity is actually known --> date rape example
(b) will hopefully encourage more women to report crime
(c) creates a counter to the D's attack on the victims character --> protects vulnerable members of society

16

(2) con:
(a) highly UP, will lead to lots of mini trials, can lead to confusion of issues
I. most common argument is UP
(b) this leads to a Due Process argument --> it's unfair to D to have such evidence introduced and the American
justice system places a high value on liberty
(c) in at least some cases, the actual identity of perpetrator is unknown, or whether the crime actually happened
is unknown
I. previous offenders are more likely to be convicted this way, regardless of guilt
II. this implicates racial and SES stereotypes
III. bottom line = admitting this evidence can lead to false convictions
d. 5th Amend. concerns
(1) the 5th Amend. protects against being convicted twice for one crime
(a) D might have paid what he owed to society but then be placed in jeopardy of a second crime because of the
first
(2) US v. Mound (1999) --> D argued that 413 violated DP rights under 5th Amend.
(a) Ct. ruled that it does not because 403 engages in the balancing act, and this is curative of any potential
problems
(b) dissent: argued that the balancing power of a FRE 403 analysis prevents FRE 413-415 from being a violation of
due process
2. the Rules
a. FRE 413 = this is an exception to the ban on propensity evidence b/c it directly allows highly prejudicial evidence
all
prosecution has to do is prove that a reasonable person/juror could believe that D had committed other sexual assaults
based on the past acts evidence
(1) In a criminal case in which D is accused of a sexual assault, the court may admit evidence that the D committed
any other sexual assault. The evidence may be considered on any matter to which it is relevant. (govt must give
D at least 15 days notice)
(2) only applies: [1] in criminal cases, [2] where D is accused of sexual assault, and [3] D has previously been accused
of sexual assault (doesn't have to have been convicted)
(a) types of evidence = prior sexual assault incidences; can be used for any purpose in current trial
(3) purpose = to make it easier for prosecution to convict people of sexual assault (a prosecution-friendly rule)
(a) too many sexual assault cases dissolve into "he said/she said" arguments, so this is supposed to give
prosecution extra ammo when going after a D who's been accused of sexual assault multiple times, even if
they haven't been convicted
(b) does NOT have to be a conviction to be admissible, and under Huddleston, D could even be acquitted of the
crime and that could still be admissible b/c it's a low bar to prove that "any reasonable juror" could find this
evidence to be probative --> this evidence, like conditional relevance, must be reasonably likely
(4) NOTE: this Rule takes the place of FRE 404 (b/c the prosecution doesn't have to go "around the box"), but only in
sexual assault cases
(a) this evidence is obviously highly prejudicial, but in making this law, Congress basically said that this prejudice is
not unfair
(b) Rule could've been drafter better --> there's no reference made to these exceptions in 404, and there's no
mention made of 403 here (which does still apply, unlike 404)
b. FRE 414 = In a criminal case in which a D is accused of child molestation, the court may admit evidence that the D
committed any other child molestation. The evidence may be considered on any matter to which it is relevant (Still
have 15 days notice requirement)
(1) allows in evidence of prior child molestation cases
(a) 414(d): child = below 14 years of age
(2) this is essentially the exact same as 413, but it instead allows in evidence that D might have committed child
molestation rather than evidence D was "accused of a sexual assault"
c. FRE 415 = this is essentially 413 + 414, but it applies to civil cases rather than criminal cases
(1) drafting problems: somewhat ambiguous as to if you can only use prior evidence of the thing for which D is being
sued
3. A World Without 414 State v. Kirsch (1995) --> D was a youth minister who was accused of molesting several young
girls during church sleepovers
a. govt used uncharged conduct witnesses (other girls who didn't speak out earlier) to bolster their case
b. since there is no 413 in this world, the govt must try to get around the box
(1) ct. rejected all these arguments, suggesting the evidence was being used to show propensity
(2) common plan argument: ct. held that if the state wishes to use past acts to show D's common plan/scheme, the
state must do more than just show that each crime was "planned" in some way --> there must be some overall
scheme "of which each of the crimes is but a part"
c. per T-burg: this is pure propensity evidence
(1) this world includes desperate attempts to extend 404(b), but most won't work

17

(a) intent rationale doesn't work b/c intent is irrelevant (he's saying he didn't do it)
(b) plan or scheme rationale doesn't work b/c D didn't have some big scheme, he was just a garden variety child
molester --> book suggests that common plan is not common, but there are cases in where D used Vic 1 to
find Vic 2
4. Are These Rules Desirable? Lannan v. State (1992) --> ct. decided to end a 413-like exception to the propensity rule in
favor of fully applying 404(b). Gives a good overview of the debate.
a. pro admissibility:
(1) these offenders have a high rate of recidivism
(2) want to bolster witness's testimony (as they are usually the only W's to the crime and there's little other evidence)
b. cons:
(1) there's no longer a need to bolster Ws testimony b/c now it's more commonly reported and understood to
happen
(2) unfairly prejudicial to D, especially if the bad acts are not related to the present bad act on trial
(3) doesn't seem to require evidence of past convictions --> past allegations may be enough
c. per T-burg: good example of how judges can be judicial policy makers
E. PROOF OF D's & V's CHARACTER FRE 404(a)(2) & 405
1. what is and is not allowed
a. 404(a)(1): covers the character of the accused in the case (ie, it cant come in)
b. 404(a)(2): covers the characters of the victim in a criminal case (D can bring in Vs character)
(1) (A): a D may offer evidence of the Ds pertinent trait, and if the evidence is admitted, the govt can offer evidence
to rebut it
(2) (B): subject to the limitations of 412 (Vs character in sexual assault cases), a D may offer evidence of an alleged Vs
pertinent trait, and if the evidence is admitted, the govt may:
(a) (i): offer evidence to rebut it
(b) (ii): offer evidence of the Ds same trait
(3) (C): in a homicide case, the govt may offer evidence of the alleged Vs trait of peacefulness to rebut evidence that
the V was the first aggressor
c. you can use these as propensity evidence, but only as to pertinent character traits
(1) Evidence must also be relevant under 401 and 402
d. restrictions on who can use it:
(1) Accused
Character of himself
Character of the V
Will want to call someone with knowledge of such character trait
(2) Govt
Generally only can introduce evidence if the D does it first.
***Be careful here to analyze how the evidence gets in. If D is offering the character evidence as an around
the box argument, govt will not be able to rebut it. (Problem 3.17)
EXCEPTIONin any homicide case, if the D argues s/d, govt can prove that V was a peaceful person.
Here, D may not have attacked Vs character, but govt can still introduce evidence of peacefulness.
Basically because V cant speak up for his or her self.
Of the accused can only come in to rebut evidence D brought in him self
Used often in s/d cases.
Can only be used to address that evidence.
OR if the D shows the V had a particular character, the govt can show that D had the same characteristic.
Example: D says I have a reputation of helping old ladies in the neighborhood. Govt could challenge this trait in
particular.
(3) Summary
D of Dgovt can rebut the same trait.
D decides which door to open and how far
D of Vgovt can put on evidence of the same trait
D of Vgovt can put on evidence of Ds same trait
D claims V was first aggressorgovt can use evidence of Vs peacefulness.
2. form of evidence (FRE 405) methods of proving character through evidence
a. 405(a) = when evidence of a persons character or character trait is admissible, it may be proved by testimony about
the persons reputation or by testimony in the form of opinion. On cross-exam of the character W, ct. may allow inquiry
into relevant specific instances of the persons conduct
(1) this permits inquiry re: specific instances of conduct during cross-exam of the character W (e.g., Michelson), but
not during cross-exam of any other person, including the person about whom the character W is testifying --> [see pg.
272]
(2) thus, the D himself can't be cross-examined about specific instances of his own conduct unless:

18

(a) the evidence has a valid non-propensity purpose under FRE 404(b)
(b) the D has made himself his own character W by vouching for his peaceful nature
(c) the past incident resulted in a conviction of a serious crime and survives the weighing test of FRE 609(a)(1)(B)
b. 405(b) = when a persons character or character trait is an essential element of a charge, claim or defense, the
character trait may also be proved by relevant specific instances of the persons conduct
c. Direct Examination
(1) Restricted to general reputation and individual opinion
(2) Specific instances are not admissible
(3) May only ask for character evidence as reputation or opinion.
(a) Cannot testify to specific acts that happened.
(b) Opinion=my thoughts/feelings about the D
(c) Opinion= what the witness thinks about the person
(d) Reputation=the communitys regard of Ds character
(e) Reputation= what others think about the person based upon what the witness heard
(4) Can use specific act evidence if the character trait is an essential element of the crime
(a) Ex: slander, where the underlying act must be false in order for there to be a claim.
(b) Entrapment includes a character element (elements= that govt initiated contact and that D wouldnt have
done this on their own)
d. Cross-Examination
(1) General reputation, individual opinion, and specific instances are admissible
(2) May ask questions about specific acts
(3) Must be about the trait that is at issue
e. Exception: In instances where the character evidence is an essential element of a charge, claim, or defense, the specific
instances may be utilized on direct
(1) Entrapment cases and custody disputes allow specific instances
f. Policy: If good character evidence of specific situations were allowed on direct, then they could be very difficult to rebut
g. When character evidence is allowed, it can be used to test or question the knowledge of the witness, not to tell the jury
about other acts
(1) Goes to credibility of the witness, not the truth of the specific act. (but the act must be true)
(2) Also inherent 403 limitevents that happened a long time ago may have a lower PV and higher UP
h. Michelson v. US (1948) --> D was charged with bribing an IRS agent. On cross, govt asked W if he knew that D had been
arrested twenty years prior for receiving stolen goods
(1) Ct allows it to challenge Ws credibility
(2) Time was of the essencethe specific act was many years before hand, but the witnesses said they had know the
D since before the specific event
i. why do we allow only reputation & opinion evidence?
(1) If specific acts were allowed, this could lead to mini trials and confusion of the issues
F. EVIDENCE OF HABIT FRE 406
1. generally: you cant use character evidence to attack the credibility of a W, except if that character trait is character for
truthfulness of a W (607-609 cover those situations)
a. TEXT: Evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular
occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this
evidence regardless of whether it is corroborated or whether there was an eyewitness.
b. covers: evidence of habit or routine practice
c. permissible: ask fact finder to believe that D acted in conformity with their normal habits
(1) this Rule can be either permissive and then used in conjunction with 403 or more narrow
d. policy rationale = we allow this b/c habit is more probative than other character evidence
e. threshold for admission = proponent of the evidence must prove that O has done this action a sufficient amount of
times AND show how unthinking the activity is
(1) habit = repetitive, to the point where you do it without thinking (i.e., locking the door every time you leave the
house)
(a) the more innocuous the activity, the more likely a court will find that it is a habit (wearing hats, seatbelts, etc.)
(b) true touchstone is regularity, leading to predictability
(2) character = sporadic instances, even if it happens often (i.e., the guy who gets into fights in bars doesnt always
get into fights every time hes at a bar, so this would be character evidence)
(3) Ex: religious activity --> courts are hesitant to find this habit evidence
2. Halloran v. Virginia Chemicals, Inc. (1977) --> P was suing for product liability after a can of Freon exploded. P claims that he
used warm water and a thermometer, but the can exploded. D has a witness that will testify that P often/habitually used an
immersion coil to heat the water.

19

a. issue = was the "habit evidence" really just propensity evidence?

b. the Ct. accepted the D's argue of habit over the P's objection of improper use of propensity only if the D could provide
enough evidence of a sufficient number of occasions to warrant an inference of habit
(1) per T-burg: ct. held that this was habit, but it is probably closer than the ct. makes it sound
G. EXCEPTIONS TO THE BAN ON CHARACTER EVIDENCE
1. generally: there are 7
general exceptions to
the general rule that
bans evidence of a
person's character, if
offered to prove action
in accordance therewith
[pgs. 270-71]

character of witnesses
comparison chart:

V. IMPEACHMENT & CHARACTER FOR TRUTHFULNESS

A. MODES OF IMPEACHMENT GENERALLY [see chart on pg. 260]
1. non-character impeachment
a. generally: it's ok to say that a W was/is mistaken; there's no need to worry about the character evidence rules when
questioning a W's perception, memory or narrative accuracy
(1) the following are various ways to say that a W is mistaken --> [pg. 257-58]
b. contradiction by conflicting evidence = "You said the light was green, but this picture shows the light was red."
c. contradiction by past inconsistent statement = "You said X in this police statement, but now you are saying Y. Why is
that? Are you lying now or then?"
(1) watch out here b/c jury may conclude that his first testimony was false, but this is honest now. It can
become negative value
(2) O can also introduce prior consistent testimony this is NOT a propensity problem
d. evidence of bias = suggests that the witness has a motive to lie in this case, not that he/she has a bad character for
truthfulness

20

2. character-based impeachment
a. generally: although 404(a)(1) seems to bar propensity-based evidence that implies the W is a liar and acting as a liar,
404(a)(3) permits evidence of a W's character as provided in the following Rules
b. FRE 607 = either party may attack a W's credibility, including the party who sponsored/called the W
c. FRE 608(a) = either party may offer evidence of a W's character for untruthfulness, the the Opponent may rebut with
evidence of the W's character for truthfulness BUT character for truthfulness is only admissible if character for truthfulness has
been attacked; in either case, the evidence must take the form of opinion or reputation
(1) inference = the W has a bad (or good) character for truthfulness and therefore is more (or less) likely to have lied
in this case
d. FRE 608(b) = on cross-exam a party may ask a W about "specific instances of W's conductif they are probative
ofcharacter for truthfulness or untruthfulness"
(1) inference = the W's past lies (or deceptive conduct) are evidence of their general bad character for truthfulness
and he/she is acting in accordance w/that trait now (i.e., is lying now)
e. FRE 609 = allows either party to impeach a W by showing evidence of a past conviction of a sufficiently serious or
deceptive crime
(1) inference = the past crime is evidence of general immorality or lawlessness and he/she is acting in accordance
w/that trait now (i.e., is lying now)
B. IMPEACHMENT BY OPINION, REPUTATION, & CROSS-EXAM ABOUT PAST LIES FRE 608
1. generally: character for (un)truthfulness can only be attacked by opinion or reputation evidence
a. remember, FRE 404(a)(3) says "Evidence of a witnesss character may be admitted under Rules 607, 608, and 609."
(1) [see Prob. 4.1, pg. 269 for example --> answers are on pg. 274]
b. TEXT (FRE 608):
(a) Reputation or Opinion Evidence. A witnesss credibility may be attacked or supported by testimony about the
witnesss reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion
about that character. But evidence of truthful character is admissible only after the witnesss character for truthfulness
has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not
admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesss character for
truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the
character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that
relates only to the witnesss character for truthfulness.
c. on cross-exam, lawyer can ask about specific instances (re: who???) under 608
d. rule is not limited to civil cases
e. not limited to the character of parties --> any W can have CfT called into question
f. if you're a party who's not a W, you can't have your CfT attacked under this Rule
2. rehabilitating a W's character for truthfulness 608(a)
a. this concerns a partys attempt to support a W's character for truthfulness after it has been attacked
[see also pgs.
308-09]
(1) rehabilitation allowed if the other party has:
(a) offered opinion or reputation testimony of the W's bad character for truthfulness
(b) elicited on cross-examination evidence of specific acts of the W that are probative of Cf(u)T
(c) offered evidence of a past conviction of the W
b. rehabilitation only allowed if the Ws credibility was attacked (i.e., only someone who's character has been attacked as
being a liar can bring in other witnesses to testify as to their honesty)
c. tricky part is determining what constitutes an attack on truthfulness in general
(1) opinion/reputation on direct, specific acts on cross, and past criminal conduct is clearly sufficient
(2) what about attacks on Ws truthfulness in this proceeding only?
(a) A.C.N. says evidence of bias or interest probably is not
I. debatable, but most courts go with A.C.N.
(b) contradiction by past inconsistent statement or conflicting evidence depends on circumstances
I. if saying mistake of perception, memory, etc. probably not
II. if suggesting W lied intentionally or pervasively probably so
d. if a W is attacked as lying in this proceeding, the other side can always corroborate the Ws testimony with noncharacter evidence (e.g. photos showing W wasnt lying)
(1) comes in b/c it isnt supporting Ws character for truthfulness, just being offered to prove the fact asserted

21

3. specific instances of W's conduct 608(b)

a. allows a party to attack the credibility of a W by cross-exam on specific instances of past conduct (i.e. specific instances
of conduct of the W or another W showing truthfulness OR untruthfulness may be inquired into on cross-exam)
b. these questions can only be asked on cross-exam --> on direct exam, atty can't use "specific instances" questions (i.e.,
atty can't question their own W on "specific instances")
c. limits on asking about specific instances of conduct:
(1) the specific instance must be "probative of truthfulness or untruthfulness"
(a) cross-examining atty isn't supposed to ask just general, incriminating questions about W (i.e., "collateral
questions" or "questions about a collateral matter"), only questions that go to W's truthfulness
I. Ex: cross-exam of Tom Hanks' gay character in Philadelphia --> can't ask about his gay lifestyle generally to
show he's a "lying pervert," have to ask questions that actually speak to his CfT
(b) cross-examining to catch a W in a lie only works on honest people --> dishonest people will probably just
keep lying
(2) the SI "may not be proved by extrinsic evidence"
(a) regardless of the W's answer re: the SI, counsel may NOT present any extrinsic evidence regarding the act
(i.e., must stick w/the words of the W --> since atty cant enter extrinsic evidence, they are stuck with Ws
answer to the question)
(b) extrinsic evidence usually cannot come in to support if it is not a collateral matter
(c) [see also pgs. 312-16]
(3) inquiry into a SI is only allowed at the ct.'s discretion (i.e., the questioning must survive a 403 weighing test)
(4) inquiry must be premised on atty's good faith/reasonable belief that the SI conduct actually occurred
(a) atty must lay a proper foundation
(b) passage of too much time since W had this knowledge can defeat Ws ability to testify (assessment is left to
discretion of ct.)
(c) level of familiarity w/the community (i.e., not just a few people) can defeat ability to testify as well (left to
discretion of ct.)
(5) many cts. won't allow someone to use 608(b) as a "back door" for evidence that wouldn't be admissible under FRE
609
4. US v. Whitmore (2004) --> D runs away from two officers and a PO says he had a gun that he threw away shortly before
apprehension. Ds defense is that the gun was planted and wants to offer other W's and evidence (a license suspension
report for cop) to challenge the cop-W's CfT
a. goal of D's witnesses is to attack cop's character and show that he's a liar --> if the gov'ts case only depends on his
testimony, their case would be weak were he not believable
(1) 608(a): attack W's character for truthfulness. At first, this should only be reputation and opinion only
(a) this allows prosecution to attack cop's character for truthfulness
(2) 608(b): allows W's character for truthfulness to be attacked directly on cross-exam
b. trial ct. = refused to allow character witnesses and license suspension report to attack the credibility of cop
(1) the 3 character witnesses:
(a) Journalist > wrote a story about cop being a liar
I. journalist failed 403 analysis
(b) Defense attorney > cop has a reputation as a liar in defense atty community
I. defense atty failed b/c he only talked with a few other attys
(c) cop's friend
I. trial ct. determines that friend is not close enough with cop to testify
II. per T-burg: if you're testifying about someone's reputation, you don't really need to know them that
personally b/c that's kind of what reputation is (i.e., what people who aren't that familiar w/you know
about you)
(2) also wanted to question cop himself about failure to report suspension of license to his superiors and failure to pay
child support
(a) cross-examination of cop --> the "specific events" questions should've been able to come in, assuming they
have to do w/the W's credibility!
I. however, trial ct. didn't let the questions come in because there wasn't enough foundation for the questions
--> counsel must have a reasonable basis for asking questions on cross-exam that tend to incriminate or
degrade the witness testimony or truthfulness
(b) per Trachtenburg: the trial ct. was just wrong
I. documents from DMV is NOT hearsay
II. atty just needs reasonable belief that specific act happened, not actual proof that it happened.
c. app. ct. = also would've denied the character witnesses, but said the license suspension report should've been admitted
(1) witnesses did not have the necessary acquaintance w/the cop-W in order to assess character
(2) however, the license suspension report was enough to give reasonable doubt as to the cop-W's CfT
(3) in the end, app. ct. agreed w/D and ordered a new trial based on trial ct.'s harmful error in not allowing the license
suspension report

22

(a) per T-burg: doesnt love this result because cop's reputation is probs more probative to jury than evidence
of a suspended license
C. PAST CONVICTIONS & IMPEACHMENT FRE 609
1. generally: 609 deals with evidence of past convictions --> this is a specific route "through the box" (probably the 2nd-most
used character evidence rule)
a. this Rule essentially overrules/takes the place of FRE 608 when asking about evidence of past crimes
b. see TEXT, FRE 609(a)-(e)
c. evidence of a past conviction is still subject to 403 analysis, where D is the reference point
(1) evidence that the W was convicted of a crime is admissible if both:
(a) the crime he or she was convicted of is punishable by death or imprisonment in excess of 1 year
(b) the ct. determines that the PV of the evidence outweighs its prejudicial effect
I. when introducing against a non-accused W, burden is on the side wanting to keep the evidence out
II. when against an accused, burden is on prosecution to show PV outweighs prejudice
d. extrinsic evidence is admissible under this Rule
2. key questions to ask:
a. does this prior conviction involve deceit?
(1) if yes, use special Rule
(2) 609(a)(2): W = D; deceitful act w/in 10 years, it WILL come in --> NO 403 balancing test
(3) evidence of the conviction of a crime concerning dishonesty or false stmts. is admissible regardless of penalty
(4) why can't you ask about past crimes that don't involve honesty?
(a) garden-variety theft doesn't necessarily involve dishonesty (e.g., larceny and robbery are not "dishonesty
crimes") --> such crimes are not really "relevant" under 403 analysis
(b) however, you could still ask about these crimes if they are crimes that carry sentences of more than 1 year
b. was the crime punishable by > 1 year?
(1) if yes, use Rule
c. is crime > 10 years old (i.e., either the date of release or conviction > 10 years ago)?
(1) time limit = evidence of a crime is not admissible if the date of conviction or the day of release from imprisonment,
whichever is later, is > 10 years prior
(a) however, if ct. determines the evidence is needed in the interest of justice and the PV substantially outweighs
its prejudicial effect, then any crime, regardless of time, can be admitted
(2) 609(b): burden is on proponent of evidence to show PV substantially outweigh UP to get conviction older than 10
years in to impeach
(a) clock starts running when D is released for the last time (i.e., if D is released on probation, but then
incarcerated again for a probation violation, the clock will start when you are released for the 2nd time)
(3) Rules are unclear when clock stops and starts
d. who is the W (i.e., is it the D in this case)?
e. was this a juvenile conviction?
(1) if yes, prob not getting in
(2) 609(c): juvenile convictions
(a) only admissible if necessary for a determination of guilt
(b) typically only allowed if really bad, recent, and/or repetitive
(c) Ds juvenile record is never admissible
3. the Brewer test
a. ct. had to determine whether to allow evidence of prior convictions --> used a 5-factor balancing test when considering
whether to allow past conviction evidence under FRE 609(a) for impeachment purposes
(1) called "reverse 403"
b. US v. Brewer (1978) --> to determine the when you were released, cts. look to the last time you were released
(1) the centrality of the credibility issue
(2) impeachment w/conviction overrides 608
(3) use 609 to determine when you can and cannot use conviction to attack truthfulness, gave questions to ask -->
[this is the "Brewer test," see 5 factors below]
c. 5 factors considered:
(1) nature of the crime
(a) some violent crimes have almost no PV in determining impeachment --> if crime had nothing to do
w/dishonesty, it's probably less useful for impeachment purposes
(b) also the more severe the crime, the more likely evidence is admissible/probative
(2) the time of conviction and the Ws subsequent history [more important]
(a) the more time goes by w/o repeat offense(s), less likely to admit
(b) repeated conflict w/the law favors admission of past crimes

23

(3) similarity b/tw the past crime and the charged crime [more important]
(a) the more similar the past crime is to the current crime, the more probative and more prejudicial it is
(b) if the old crime is quite similar to the charged, speaks against admissibility risk of propensity is high
(4) importance of D's testimony
(a) the more important/necessary it is to Ds defense that he/she testify, less likely the ct. is to admit D's past
criminal evidence b/c D won't take the stand for fear of inculpating himself
(5) the centrality of the credibility issue [more important]
(a) the more Ds credibility matters to the case, the more likely the past evidence will be admissible
4. Review of Scenarios
for Rule 609:
a. also: juvenile
adjudications (rarely an
issue b/c doesn't
happen very often) -->
only if criminal case, W
is not the accused, and
"admitting the evidence
is necessary to fairly
determine guilt or
innocence"
b. SEE ALSO "VARIOUS
STANDARDS OF
ADMISSION" [pgs. 29495]
VI. RAPE SHIELD LAWS
A. HISTORICAL BACKGROUND
1. these are relatively modern Rules of Evidence
2. evidence world before they existed:
a. D would often enter evidence of Vs unchasteness
b. Without these laws, the evidence could be admitted as credibility evidence on cross
c. Could also be used to show a propensity to consent to having sex with many people
d. Also, under 404(a)(2) D can intro evidence on V for any pertinent reason
3. People v. Abbot (1838) --> D wanted to present evidence of whether V had sexual relations w/other men; ct. held it admissible
b/c people "more readily infer assent in the practiced Messalina, in loose attire, than in the reserved and virtuous Lucretia"
4. State v. Sibley (1895) --> D was accused of molesting his underage step-daughter; prosecution wanted to admit evidence that
D's character for "morality and chastity, truth and veracity" was bad and he objected; ct. held that such evidence was
inadmissible b/c a man's bad character for chastity "does not even in the remotest degree affect his character for truth, when
based upon that alone, while it does that of a woman." >:(
B. MODERN RAPE SHIELD LAWS FRE 412
1. generally: in rape cases (or cases where other sexual misconduct is alleged), this Rule bars evidence of V's past sexual
behavior or "sexual predisposition" to prove V's sexual history or "propensity for chastity"
a. NOTE: this is a "German rule" --> can ONLY use it when an exception is present [see exceptions below]
b. all states have a rape shield law --> most are modeled on the fed. law
c. see TEXT, FRE 412(a)-(d)
d. what does this Rule do?
(1) protects V from having her sexual history go on trial instead of the D
(2) Rule circumvents 404(a)(2) --> almost like a specialized relevance rule
(3) covers: evidence that V engaged in sexual behavior or her sexual predisposition [see more on this below]
(a) sexual behavior is broad --> use of contraceptives, fantasies also covered
(b) predisposition --> bars lifestyle evidence
(4) when does it apply? applies in any trial in which sexual misconduct is alleged
(a) applies to civil suits as well
(b) covers sexual harassment
e. policy rationales for Rule:
(1) prevent the victim from being degraded during the trial and encourage victims to come forward
(2) a bright-line rule that guards against the judges interpretation or opinion of rape victims
2. when evidence of V's sexual history is INADMISSIBLE FRE 412(a)(1)
a. evidence offered to prove that a V engaged in other sexual behavior, OR

24

(1) "sexual behavior includes things like physical conduct, fantasies, and things that imply physical conduct (like
pregnancy, purchasing contraceptives, taking birth control, etc.)
b. evidence offered to prove a Vs sexual predisposition
(1) sexual predisposition includes things like manner of dress, speech, lifestyle, etc.
c. NOTE: allegations of false accusations of rape, sexual assault, etc., are NOT considered evidence of past sexual conduct,
but remember 403 concerns (State v. Smith)
3. when evidence of V's sexual history is ADMISSIBLE FRE 412(b)
a. 412(b)(1) = criminal exceptions:
(1) (A): In criminal trial, evidence can be used to explain the source of semen, injury or other physical evidence
(a) Must be specific acts, cant be reputationie, there was semen, but she had sex with another person two hours
later, and he is the source
(2) (B): past sexual acts with accused if offered to show consent on the time in question.
(3) (C): constitutional limits -- hard to specify what this would be [see Olden v. KY below]
(a) standard = to be admissible under this exception, evidence has to be "critical to D's defense"
b. 412(b)(2) = civil exceptions:
(1) admissible if PV substantially outweighs UP or danger of harm to any party
(2) admissible if V places her reputation in issue (she may do so to get more damages)
4. State v. Smith (1999) --> D was accused of sexually molesting V; D wanted to introduce evidence that V had previously
accused another person (her cousin) of molestation and then retracted her accusation; trial ct. said this was barred by 412
b/c it concerned "past sexual behavior" of the V
a. state sup. ct. reversed and remanded, holding that b/c the evidence didn't concern V's prior sexual behavior, history, or
rep. for chastity, evidence of V's past false allegations was not "past sexual behavior" that would be barred by the Rule
(1) V's past false allegations of sexual assault "past sexual behavior" barred by 412 when this evidence is offered for
impeachment purposes to prove that V could be lying in the current case
b. on remand, can D introduce the evidence?
(1) Step 1: Is there a route around the box?
(a) maybe 608, but 3rd party W could only testify to reputation and opinion on direct exam
(b) V could be crossed-examined about it (but only if she brings up her character first?) --> D will be stuck with
her answer, though
(2) does D have to prove that allegations were false?
(a) ct. says yes, per the Huddleston Standard
(b) per T-burg: the Huddleston standard is NOT the correct standard here, even though ct. said it was --> under
the FRE there really only needs to be a good faith basis of belief of evidence
C. possible ways to offer evidence of V's past sexual behavior
1. NOTE: these arguments are not guaranteed to work, but various D's have tried them w/varying degrees of success
2. to prove the V's bias or motive to lie
a. Olden v. Kentucky (1988) --> D wanted to enter evidence that W has a sexual relationship w/V in order to show bias
(1) trial ct. = evidence barred under 412s broad reach and it doesnt fall under the exceptions
(2) state Sup. Ct. = reversed and remanded b/c evidence was central/critical to the D's defense
(a) b/c V's veracity was a crucial part of whether or not the jury would convict D, and b/c she had a motive to lie,
it was an error for the trial ct. to bar evidence of her relationship that would demonstrate her motive to lie
about what happened w/D
(3) also discussed D's 6th Amend. right to confront a prosecution W on cross-exam re: W's credibility and veracity
[see Notes page for full discussion of this]
b. Olden doesnt mean that this evidence always gets in, BUT it can get in if it is central to the Ds case (i.e., as in here
where it goes to show bias) --> look to the policies behind the rape shield laws and see if this evidence goes to those
3. to maintain the narrative integrity (res gestae) of the D's account
a. Stephens v. Miller (1994) --> trial ct. didn't allow D to present evidence that D and V discussed V's about other sexual
encounters, but did allow him to testify that he'd made her angry and that's why she was lying about the consent
(1) app. ct. basically said that there was no error denying this evidence b/c D was allowed to present all the evidence
except the specific things he'd said to the V (i.e., there was no real purpose to the evidence other than to
embarrass and humiliate the V)
(a) also, res gestae is "obsolete" and "a concept with no (fed.) const. significance"
(2) dissent: thought that D should've been allowed to relate ALL of his statements b/c his defense hinged on making
the jury believe that he'd made the V so mad that she'd "fabricated a rape allegation in retaliation"
(a) the accused's 6th Amend. right to present his defense was more important than the pub. pol. purpose of the
rape shield law
4. to show D's state of mind at the time of offense
a. US v. Knox (1995) --> V said D raped her; D claimed she consented and wanted to offer (essentially hearsay) evidence of
her past sexual behavior with other people

25

(1) app. ct. said there was no error in barring this evidence --> the fact-finders were presented with both D's and V's
full stories and they decided to believe the V
(2) V's past promiscuity had nothing to do w/consent that night
D. Problems discussed in class
1. Problem 5.1 (pg. 331)
a. prosecution: 412(a) would bar this evidence
b. defense: 412(b)(1) would allow Nov. 20 email to show V's specific behavior w/D to prove she consented
(1) the Nov. 19 emails probably wouldn't come in b/c they're about V's past sexual history/acts w/another person and
D isn't trying to say someone else did it
2. Problem 5.2 (pg. 332)
a. D's testimony would probably not come in b/c none of the exceptions will apply
3. Prob. 5.4 (pg. 338)
a. rape shield prob does cover this b/c it's being offered to show V's past sexual behavior under 412(a), but D could maybe
get it admitted under 412(b)(1)(c) (Const. rights claim) b/c not talking about the sex right before V's statement would
make D's story really unbelievable (i.e., it doesn't make sense that she was saying 'rape' if D can't explain they'd been
having sex right before that)
b. the C can be asked about character for (un)truthfulness on cross-exam
VII. HEARSAY
A. THE BASICS
1. generally: a party offers evidence from a non-present W to prove the truth of the matter asserted
a. definition = an out-of-ct. statement [from the non-present W] offered by a party/litigant to prove what the Declarant
[the non-present W] asserted
(1) FRE 801(a)-(c) = hearsay definitions
(2) TEXT: The following definitions apply under this article:
(a) Statement. Statement means a persons 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.
b. policy considerations:
(1) fairness = prevents unfairness and injustice
(2) reliability = Rule allows the Judge to act as a gate-keeper and prohibit the jury from hearing evidence that is
unreliable
(a) if there isnt a concern about reliability, there probably isnt a concern about hearsay
(b) if there is a theory that would resolve a reliability issue, then there is probably an exception that would allow
in the hearsay evidence
2. concerns about reliability
a. generally: the hearsay rule is primarily about the reliability of the evidence a jury hears
(1) asks generally, "When is evidence solid enough to bring in front of the jury?"
(2) the 4 testimonial capacities = perception, memory, narration, & sincerity
(a) ways the 4 testimonial capacities can go wrong:
I. perception = saw the "wrong" person do the crime
II. memory = remembers the details incorrectly
III. narration = W means to say the right person, says wrong person by accident
IV. sincerity = the W means to deceive
b. we feel reasonably confident that W's testifying about something they personally observed will be accurate and reliable
b/c they can be tested by the jury
(1) ways to test the 4 capacities:
(a) taking an oath = solemnity of procedures will improve all four capacities
(b) jury can assess the W's demeanor in person = jury can decide if W is lying or is wrong based on their
demeanor
(c) W is subject to cross-exam = allows Opponent to go after the 4 capacities
(2) for a jury to test hearsay evidence, they would have to rely on all 4 of the W's capacities + all 4 of the non-present
W's capacities, but would have no opportunity to test the non-present W via oath, personal assessment, and
cross-exam
(a) i.e., if something is hearsay, we are worried about it's reliability b/c the jury can't test it in those 3 ways

26

3. ELEMENTS: is this hearsay?

a. A STATEMENT? = someone has to state something via words, writing, actions, etc.
b. MADE OUT-OF-COURT? = was the statement made out-of-ct.?
c. OFFERED FOR ITS TRUTH? = do we care whether the 3rd party was right or just what they said/how it affected someone
else?
(1) there are several common non-hearsay purposes for evidence of an out-of-ct. statement that would allow the
testimony to be admitted --> [see below]
(2) common non-hearsay uses of out-of-ct. statements:
(a) words offered to prove the statement's effect/impact on the listener
I. Ex: A says he killed J in self-defense; A wants to testify that B told him "Watch out, J's out to kill you" --> B's
statements aren't hearsay if offered to show that A had reason to fead J at time of the attack (i.e., it doesn't
matter if B's testimonial capacities were sound, only that they had an effect on A)
(b) legally operative words (verbal acts)
I. hearsay words could be offered to prove a legal right or duty that was triggered by, or an offense that was
caused by, uttering the statement
II. such words have legal force independent of the speaker's intended meaning, so the words may be offered
to prove a legal right or duty triggered by (or an offense caused by) uttering the statement
III. Ex: saying "I accept" = a contract; saying "I will kill you" = a threat
(c) inconsistent statements offered to impeach the Dec's later, in-ct. testimony
I. prior out-of-court statements used to impeach a witness is NOT hearsay
II. theory is that the out-of-ct. statement(s) proves the W has said diff. things at diff. times about this fact, thus
W's testimony on this point cannot be trusted
A. the theory is NOT that the prior out-of-court statement is true and the in-court statement is false
(d) non-assertive words
I. very small category --> only clear example of this would be involuntary expressions (e.g., banging your knee
and saying "ouch!" would probably not be intended to communicate your pain to anyone)
(e) words offered to prove something other than what they assert
I. this relates to words offered to prove something other than what the Dec originally intended to
communicate
A. similar to rationale re: non-assertive conduct above (???)
II. Ex: to prove the testator's competence, atty offered letters from other people to the testator that did not
discuss his competence, but where the other people acted as if he was competent --> their perception of
him was that he was competent b/c they treated him as such, so they did not feel the need to explicitly
state that they thought him competent
(f) words offered as circumstantial proof of knowledge
I. this relates to words offered to prove that the speaker is correct/truthful in their statements b/c they have a
close correspondence w/other verified facts
(g) common thread = none of these rely on Dec's belief re: the truth of statement, so their testimonial
capacities are irrelevant
d. AN ASSERTION? = someone has to intend to communicate something to an audience
(1) generally: to be considered an "assertion," the conduct must be intended to communicate something
(a) cts. favor admission of evidence --> if it's debatable whether the evidence was intended to be communicated to
someone else, it's probably admissible
(b) the difference is b/tw acting solely for yourself (non-assertive conduct hearsay) vs. acting to communicate
something to an audience (assertive conduct = hearsay)
(2) conduct = can be an assertion where the conduct/gesture is equivalent to a verbal assertion
(a) the out-of-ct. actor's sincerity (as a testimonial capacity) is what concerns us the most in this context
(b) silence is NOT usually an assertion
(3) words = usually are assertions b/c they presume an audience and rely on the sincerity of the speaker
(4) assertions can be express, implied, or indirect
(a) express assertions = speaker clearly asserts something
I. Ex: "Laura's dog is dirty" = speaker expressly asserts that the dog is dirty
(b) implied vs. indirect assertions:
I. implied assertions
A. Speaker intends to communicate something by implication
B. commands can be assertions, depending on context (e.g. Telling someone to stop at a stop sign could
be an assertion that a stop sign is coming up, but not if the listener can clearly see it)
C. questions can be assertions e.g, asserting a lack of knowledge
D. declarations can be implied assertions saying one thing that necessarily relies on some other fact
(e.g., saying "Laura ought to give that dog a bath" = speaker implies an assertion that the dog is dirty)
II. indirect assertions

27

A. if a statement is a part of a chain of inferences leading to an ultimate conclusion, the original statement
can be an assertion of that conclusion (e.g., saying youre planning for retirement is an assertion that
youre not going to kill yourself)
B. BUT if the chain requires an assumption of the truth that the substance of the original statement is
true, it is hearsay (e.g., saying someone is going to kill you to show that youre in fear requires an
assumption that the person is actually going to kill you)
e. T-burg's version of these questions:
(1) is it an out-of-ct. statement?
(2) did the W say it to prove the truth of the matter asserted?
(3) NOTE: the statement is not hearsay unless the answer to both questions is yes
4. Problems [starting on pg. 384]
a. hearsay can be writing, i.e., W testifies that they saw someone else sign an affidavit (Prob. 7.1)
b. hearsay can be a gesture (Prob. 7.2)
c. if the PO says they saw a W identify a suspect, that IS hearsay; if the W testifies that they identified a suspect, that's
NOT hearsay (Prob. 7.2)
(1) however, there's a hearsay exception to this in 801(d)(5)(C)
(2) per T-Burg: the Rules say these aren't hearsay, but really, they're "hearsay-but-admissible"

28

B. HEARSAY EXCEPTIONS
1. generally: hearsay is NOT admissible except as provided by the exceptions in FRE 801(d)(1)-(2), 803, 804, 807

b. categories of hearsay exceptions:

Category
Dec-Ws prior stmts.

Rule
801(d)(1)

Opposing parties stmts.

801(d)(2)

exceptions applicable
regardless of Decs availability

803

exceptions available only when

Dec is unavailable
residual exception

804

Includes
prior inconsistent stmts. (A); prior consistent stmts. (B);
stmts. of ID (C)
partys own stmts. (A); adopted stmts. (B); stmts. by
spokespersons (C); stmts. by agents (D); co-conspirator stmts.
(E)
present sense impressions (1); excited utterances (2); stmts. of
then-existing mental/emotional/physical condition (3); stmts. for
med. diagnosis/treatment (4); recorded recollections (5); biz
records (6 & 7); public records & reports (8 & 10)
former testimony (b)(1); dying decs (b)(2); stmts. against interest
(b)(3); forfeiture by wrongdoing (b)(6)

807

29

(1) NOTE: although these are considered to be "exceptions," the Rules actually call them "not hearsay" (i.e., an
exclusion rather than exception) --> don't worry about it, just think of them as exceptions
(a) you should always ask if something is hearsay before you talk about whether it's an exception to hearsay!
(b) none of these exceptions mean that the evidence is automatically true, or that the jury can't decide whether
they believe the statements or not --> just means that the evidence will be admissible when it usually wouldn't
be
c. traditional justifications for hearsay exceptions
(1) rationales for each exception are usually based on necessity and trustworthiness --> there's some special need for
the exception and/or some special reason to consider it more reliable than run-of-the mill hearsay
(a) necessity = special need for the hearsay evidence
I. most often where the declarant is unavailable
II. cant run a reasonable trial, or D cant get a fair trial, without it
III. cts. are probably more suspicious of necessity justifications not also having concurrent trustworthiness and
reliability justifications
(b) trustworthiness & reliability = a special reason exists to think this hearsay is more reliable than most (i.e.,
the sincerity is not as much at issue)
(2) another (informal) exception = "you deserve it" (i.e., you said this dumb thing so you deserve to have it used
against you)
2. OPPOSING PARTIES' STATEMENTS FRE 801(d)
a. the party's own words 801(d)(2)(A)
(1) generally: a party's own words are "not hearsay" when offered against him/her at trial (i.e., opposing parties'
statements, although hearsay, are nonetheless admissible against their maker)
(a) TEXT: [the following is considered "not hearsay"] An Opposing Partys Statement. The statement is offered
against an opposing party and: was made by the party in an individual or representative capacity;
(b) no requirement that the opponent admitted anything, only that they said something --> these used to be called
"opposing party admissions" (someone older atty's and judges still call them this)
I. Ex: govt objects to evidence of OJ saying Take my blood and well see [Prob. 7.12, pg. 410]
A. per T-burg: this is ambiguous and so will probably be admissible --> the and well see part makes it
seem more like OJ was making an assertion
(c) one party's statements can only be used against that same party and they must actually be a party to the case -> a 3rd party cannot use this exception and say "well, that person said they did it!"
I. Ex: drummer is accused of shooting the sheriff; he can't say, "Bob did it and he said so!" --> Bob's "I shot the
sheriff" statement can only be used against Bob
(2) rationales for allowing these statements:
(a) "this is war"
I. we have an adversary system, so once you say something, you have to be prepared to deal w/the
consequences (T-burg calls this rationale "you deserve it")
(b) parties can't complain about their in ability to cross-exam themselves
I. if they want to explain the circumstances under which their own statement was made, they can just take the
stand and say what they know/knew ("You said it, you can explain it")
(c) statements made against one's own interest are usually reliable b/c even when people lie, they usually don't lie
in a way to hurt themselves
I. these statements will always come in even if the Dec might have had a reason to lie or misstate them
II. Ex: P who claims she was injured, but still billed a ton of hours, says "I lied about how many billable hours I
did when I was hurt!" --> the billed hours are hearsay (b/c they were "statements" made out-of-ct.), but the
ct. would say, too bad! you deserve to have this used against you and it's admissible under (d)(2)(A) [Prob.
7.11, pg. 410]
b. adoptive admissions 801(d)(2)(B)
(1) generally: an admission (i.e., statement made by a party when offered against that party) may take the form of an
express or implied adoption of someone else's statement
(a) TEXT: [the following is considered "not hearsay"] An Opposing Partys Statement. The statement is offered
against an opposing party and: [] is one the party manifested that it adopted or believed to be true;
(b) elements to prove someone adopted a statement:
I. person heard and understood the statement
II. person was capable of responding
III. situation naturally calls for a response
IV. person fails to deny statement
(c) often occurs when the Dec remains silent in the face of an accusation --> if a reasonable person would have
denied the statement, it may be admitted against the Dec as an adoptive admission

30

I. Ex: "my buddy can help you get some crack" then the "buddy" gets up and gets the crack [Prob. 7.13, pg.
411]
II. Ex: jailhouse meeting --> D heard/understood statement, he was capable of responding, but it's arguable
whether the situation "naturally calls for a response" (D's in jail, has been Mirandized, knows convo is prob
recorded, has a right to remain silent) [Prob. 7.14, pg. 412]
(2) Miranda & use of silence [CB pg. 448; Supp. pg. 501]
(a) Miranda problem --> look at Advisory Committees notes at when silence = adoptive admission
I. if Miranda given, silence cannot be used
II. if Miranda not given and no contact with government, silence can be used
III. controversy over whether or not silence can be used if in contact with the government but no Miranda
was given
(b)

(c) if the D is not in custody, prosecution can always use their silence
I. the 4 adoptive admissions reqs. apply
(d) if the D is in custody, prosecution cannot use their silence (can't even ask about it)
I. case just came out on this issue --> Texas v. Salinas (2013), in Supp.
(e) per T-burg: cts. will probably care more about whether D was Mirandized than whether D was in custody
(f) [see CB pg. 448; Supp. pg. 501]
c. spokespersons & agents 801(d)(2)(C) & (D)
(1) generally: statements made by a spokesperson or agent of a party may be used against that party, so long as it's "on
a matter w/in the scope of the emp. relationship and while it existed"
(a) TEXT: [the following is considered "not hearsay"] An Opposing Partys Statement. The statement is offered
against an opposing party and: []
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the partys agent or employee on a matter within the scope of that relationship and while
it existed;
(b) statement need not be authorized by empR
(2) these exceptions only work one way --> agent's statements can be used against a principle, empEE's statements can
be used against empR, but NOT vice versa
(a) NOTE: this is different than (d)(2)(E) (co-conspirator's statements) which can be used both ways
(3) per T-burg: (d)(2)(C) is really only useful when someone speaks for empR who isn't really authorized by empR to
do so --> if someone is hired as a spokesperson, the empR expects their statements to be used for/against empR
(4) Mahlandt v. Wild Canid Survival & Research Center (1978) --> Poos (owner) was keeping a wolf (Sophie) at his house
as part of his job for D; wolf is alleged to have bitten a child; Poos leaves note for boss Sophie bit a kid; later,
finds president and says Sophie bit a kid; Board gathers, have a meeting and discuss the legal ramifications of the
incident
(a) Poos' statements get in under this exception --> his note and statements are admissible against the empR
(empR's can be held responsible for statements by empEE's) AND against himself
I. problem is that Poos is probably mistaken and has no first-hand/personal knowledge of the accident --> ct.
says this doesn't matter: if the empR didn't want to be held liable for things Poos said, they shouldn't have
hired him
(b) Board mtg. minutes ARE admissible against the Center as their own statement, but are NOT admissible
against Poos
I. it's not fair to use the statements of the empR against the empEE when he wasn't even present at the
meeting
(c) maybe could have also got this in under (d)(2)(C) (authorized speaker exception), but it'ds easier to use
(d)(2)(D) if the speaker is an empEE

31

d. co-conspirators' statements 801(d)(2)(E)

(1) generally: statements made by a party's co-conspirator, "in furtherance of the conspiracy," may be admitted against
the party so long as certain prerequisites are met
(a) TEXT: [the following is considered "not hearsay"] An Opposing Partys Statement. The statement is offered
against an opposing party and: [] was made by the partys coconspirator during and in furtherance of the
conspiracy. The statement must be considered but does not by itself establish the declarants authority under
(C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation
in it under (E).
(b) can be used in civil or criminal cases b/c there's no need to charge the co-conspirator w/conspiracy or crime
(c) these statements can go in either direction (i.e., mob boss statements used against drug mule)
(2) do NOT need to charge the co-conspirator w/anything --> Dec doesn't have to be a legally defined as a
conspirator in order to testify about a co-conspirator
(a) BUT, do have to prove:
I. there was a conspiracy b/tw the Dec and the other party at the time the out-of-ct. statement was made;
AND
II. the statement was said during the course of and in furtherance of the conspiracy
A. exception almost never covers confessions made to LE b/c those are not statements made "in
furtherance of conspiracy"
B. recruitment of members or resources
C. statements that keep up the morale of the conspirator
(3) standard of proof in showing there WAS a conspiracy:
(a) 104(a) applies, meaning proponent of the evidence must prove to judge there was a conspiracy by a
preponderance of the evidence (Bourjaily)
I. judge may consider the evidence at issue to support a preliminary finding of a conspiracy, BUT there must
be at least some other supporting evidence
(b) Bourjaily v. US (1987) --> in determining whether co-conspirators statements may come in under the coconspirator exception, ct. may consider the statements/evidence at issue to determine whether it can come in
(4) 104(a) questions vs.
104(b) questions:

3. PAST STATEMENTS OF WITNESSES & PAST TESTIMONY

a. 3 purposes for using this type of evidence:
(1) impeachment = FRE 613
(a) no special restrictions on the form of this (except FRE 403 obvs)
I. subject to 403 analysis: Inconsistent or just bad memory?
A. close in time = shows lying
B. long time ago = not as strong
II. allow these in liberally (Barrett)
(b) theory = W has said different things at different times and therefore shouldnt be trusted now
I. not hearsay b/c not being used for truth, just to show you cannot keep story straight
(c) stmts. don't have to have been made under oath, but atty has to have a good faith belief it was said
I. if statement was under oath, use Substantive attack
(d) extrinsic evidence IS allowed
(e) must be to show a lie, not merely Im not sure (Ince)
(f) post-Mirandized statements can be used to impeach
(2) to prove truth of the matter asserted (i.e., offered substantively) = FRE 801(d)(1)(A)
(a) restrictions = very difficult to use this way b/c statement must be made under oath, and W is available for
cross
(b) theory = You are lying today and told the truth in the past.
(c) limiting instruction available

32

(d) it can be used to rebut sufficiency of the evidence (Directed verdict)

(3) character for (un)truthfulness = (FRE 404(a)??? 608???)
(a) restrictions = past inconsistent statements of this type can only be proven on cross exam of the W
I. can only talk about specific acts on cross exam --> past statement is extrinsic evidence and can only be
proven on cross-exam
(b) theory = this W is not just mistaken, but is a liar
(c) not hearsay b/c not being used to prove truth, just that W lies a lot
(4) [also see chart on pg. 431 for overview]
b. inconsistent statements offered to impeach 613
(1) generally: this Rule allows impeachment of W's by using their past inconsistent statements
(a) TEXT:
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the
witnesss prior statement, a party need not show it or disclose its contents to the witness. But the party must,
on request, show it or disclose its contents to an adverse partys attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witnesss prior
inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement
and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This
subdivision (b) does not apply to an opposing partys statement under Rule 801(d)(2).
(b) theory = stmts. aren't being used to assert the truth of what they say, but to show that the W has made
conflicting statements and therefore should not be believed on this question
(c) impeachment evidence is not character-based --> evidence of a W's lying can be offered at any time, doesn't
have to wait until cross-exam like character-based evidence does
I. mechanics:
A. you have to give W a chance to confront evidence, but not in any particular order
1. extrinsic evidence of a prior inconsistent statement of a W is admissible if the W is afforded an
opportunity to explain or deny, and the opposite party is afforded an opportunity to interrogate,
or the interests of justice otherwise require
2. does not apply to FRE 801(d)(2)
B. practice tip = it's risky to not give W a chance right away --> it can look bad to jury to bring W in
twice
(d) prior inconsistent statements being offered under 613 exception CANNOT be used as substantive evidence
(i.e., can't be offered to prove truth of the matter asserted)!
I. if evidence is being used/offered only for impeachment purposes, it cannot be substantive evidence that a
conviction may be be based on [Prob. 7.17, pg. 438]
II. how could you get this evidence in as substantive evidence?
could try 801(d)(1)(A), but prob wouldn't
work unless the prior statement was made under oath
(2) US v. Barrett (1976) --> prosecution W (Buzzy): "D told me he was involved w/the robbery"; defense W1: "Buzzy is
only testifying, and is lying, in exchange for protection"; defense W2: "Buzzy told me that D wasnt really involved
in the robbery"
(a) app. ct. overruled the trial ct.'s bar on testimony from the 2 defense W's who claim that Buzzy made
inconsistent statements about D in the past --> it was Buzzy's own prior inconsistent statement, and he's here
now so he can confront the conflicting testimony
(b) NOTE: holding shows that judges really care about prior inconsistent statements --> here, the evidence
doesn't have that much PV, but ct. let it in anyway
(3) US v. Ince (1994) --> cant use Rule as a sword and a shield
(a) judge must do a 403 analysis to rule out what is "mere subterfuge" to get before the jury substantive evidence
which is otherwise inadmissible as hearsay
"cts. must not permit the gov't, in the name of impeachment, to
present testimony to the jury by indirection which would not otherwise be admissible"
(b) ct. found that Trial 2 was a sham b/c Govt knew that W wasnt going to cooperate, they just brought her in
so they could impeach her
I. Trial 1: Govt W repudiates testimony, so gov calls PO to testify as impeachment. Due to hung jury, there is
a mistrial
II. Trial 2: Govt calls the same W who repudiates testimony again. They then call PO again to impeach
(4) Fletcher v. Weir (1982) --> it doesn't violate due process to allow cross-exam as to post-arrest silence of the D
when D chooses to take the stand
c. inconsistent statements offered substantively 801(d)(1)(A)
(1) generally: governs when a W's prior out-of-ct. statements or testimony from an earlier proceeding may be used to
prove truth of the matter asserted
(a) TEXT: [the following is considered "not hearsay"] A Declarant-Witnesss Prior Statement. The declarant
testifies and is subject to cross-examination about a prior statement, and the statement:

33

(A) is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition;
(B) is consistent with the declarants testimony and is offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
(2) facts to consider:
(a) what is the nature of the inconsistency?
(b) use case by case analysis probably not realistic to forget getting kicked in the leg, BUT, a head injury may
make forgetfulness more plausible
(3) elements:
(a) prior stmt. was given under oath (depos and other hearings count)
I. Q's to ask:
A. was W's atty present?
B. was W under penalty of perjury?
(b) W is available to testify now and open to cross-exam
dont confuse this w/Rule for unavailable W prior
testimony
(c) prior stmt. and current testimony are inconsistent
I. if the W testifies that he or she doesn't remember, then the past statements can be brought in b/c the W's
testimony that the W does not remember is inconsistent
II. BUT, if the W is injured or something and clearly doesn't remember, the statement is NOT inconsistent
d. past consistent statements 801(d)(1)(B)
(1) generally: governs when a W's past consistent statement may be offered to rebut express or implied charge of
fabrication
(a) allows a W/declarant's past out-of-ct. statements that are consistent w/their current statements in order to
rebut an allegation that the W is currently lying or has some motive to do so
(b) theory = the W has said the same thing at different times and therefore should be believed on this point (i.e.,
the opposite of the theory behind past inconsistent statements, FRE 613)
(c) these are pretty rare
(2) timing & past consistent statements:
(a) prior consistent statement MUST predate the motive to lie or the improper influence (Tome)
I. NOTE: this only applies in fed. ct. --> state cts. don't have to follow this and in fact, Missouri doesn't
(b) if statement was made after the W had a reason to lie then a problem with relevancy
(c) Tome v. United States (1995) --> D (father) claimed that the V (his daughter) had been corrupted and
influenced to lie by his ex-wife
I. ct. holds that the V's prior statements were not made before a bad motive had arisen and were therefore
inadmissible
II. dissent: argues that the prior statements were really a relevancy issue
A. per T-burg: he believes this determination should have been left up to the jury
III. in order for this exception to make sense, the prior statement must be better evidence than normal
hearsay
this undercuts the bias implication and is therefore highly PV (if he already has the motive to
lie, there is significantly less PV)
e. statements of identification 801(d)(1)(C)
(1) generally: governs situations when W testifies, is available for cross, and the prior statement identifies a person as
someone the D perceived earlier (i.e., W made a prior ID of the D immediately after the incident)
(a) prior ID's are considered more reliable than in-court ID's
(2) elements:
(a) prior ID
(b) inconsistent ID
(c) W is now available for cross-exam
(3) policy considerations:
(a) lineups arent that reliable, but this evidence is really necessary --> people remember things better
immediately after the event and we want to preserve their observations b/c they're certainly not going to be
more accurate later
I. Composites --> there is a fair amount of suggestion and manipulation in composite drawings
II. Line-Ups --> there is some suggestion that lineup W's are encouraged to choose someone in the room in
hopes of picking the person the police suspect
(b) it's possible that W remembered at the time, but just doesnt remember now.
(c) prior ID's are more reliable right after the incident --> in-court IDs are obviously tainted
(d) possible reforms to lineup problems:
I. Expert testimony that lineups are not reliable

34

II. If lineup hasnt happened, get an injunction against bad lineup

III. Tell W that D may or may not be there
IV. Dont tell W how many people they are going to see and bring them all in one at a time
V. Double blind lineup (PO doesnt know who the suspect is)
VI. Combine (d) and (e)
(4) US v. Owens (1988) --> W makes an ID via photo array, later looses his memory after a head injury
(a) testimony is allowed in so long as W is available for cross
(b) it doesnt matter that W isnt a great cross, just that they are available --> D is entitled to cross generally, not
a good cross
(5) Commonwealth v. Weichell (1984) --> W saw D under the light for one second and helps to make a composite
(a) ct. dodges the question of whether the picture itself is hearsay
I. per T-burg: the composite pic probably was hearsay
(b) ct. finds that it is admissible as a prior ID under 810(d)(1)(C) exception, so long as W is at trial and can be
cross-examined --> W isnt a great witness, but that is why we have cross
4. HEARSAY EXCEPTIONS WHEN DEC IS UNAVAILABLE FRE 804
a. generally: some hearsay is admissible when the Dec is unavailable; the following exceptions require that the Dec be
"unavailable" to testify at trial
FRE 804 only applies to W's who are unavailable (whether that's physically or by
refusing to testify, etc.)
b. when is the Dec considered "unavailable"? 804(a)
(1) generally: these all involve situations where the W is unavailable, but we still think that having their testimony is
better than nothing
(2) TEXT:
(1): Declarant is exempted from testifying about the matter of her statements due to a privilege.
(2): Dec refuses to testify despite a court order to do so
(3): Dec testifies to not remembering the subject
(4): Dec has died or has a then-existing infirmity, physical illness or mental illness.
(5): Dec is absent and proponent of evidence is unable, but process or other reasonable means, to secure:
(A): the declarants attendance for 804(b)(1) [former testimony] or (b)(6) [wrongful forfeiture]
(B): the declarants attendance or testimony for (b)(2) [pre-death statements] (b)(3) [statements against
interest] or (b)(4) [personal or family history].
c. former/past testimony exception 804(b)(1)
(1) generally: testimony given in an earlier proceeding is usually be admissible if the Dec is now unavailable
(a) this exception can only be used against someone who was at the prior hearing and had some opportunity to
question the W during that time
(b) TEXT:
(A): past testimony was given while acting as a W at a trial, hearing, or lawful deposition, whether given during
the current proceeding or a different one, AND
(B): the testimony 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.
(2) requirements:
(a) Dec is unavailable
(b) the former testimony was made in a hearing or deposition during a proceeding and given under oath
I. affidavits and stmts. made to police or other LE officials are not included here --> [see pg. 284 in Emmanuel's
supp.]
(c) the party against whom testimony is being offered had an opportunity to (cross) examine the Dec in the
earlier proceeding (American Export Lines)
(d) the party against whom testimony is being offered had a similar motive/reason to examine the testimony
in the earlier proceeding
I. grand jury is NOT same incentive to cross b/c they'll indict almost anyone (???)
II. same matter
III. seriously disputed
IV. similar proceedings --> informational v. adversarial
(3) policy considerations:
(a) is there a public policy rationale you can apply?
I. reliability --> reasons to think prior testimony is reliable b/c it was given under oath, w/tough cross, serious
consequences before, etc.
II. necessity --> better to use this testimony than nothing
(4) US v. Duenas (2012) --> double hearsay issue = PO (Smith) hears what Ray said to him about D(?); PO later dies in
car accident; prosecution wants to offer PO's affidavit
(a) Evidence developed during a police search tainted by media presence need not be excluded so long as the
media did not discover or develop any evidence later used at trial.

35

(b) ????
(5) Lloyd v. American Export Lines, Inc. (1978) --> Following a drunken fight onboard a ship b/tw 2 empEE's, Lloyd (P) and
Alvarez, the Coast Guard held a hearing to determine whether P's merchant marine rights should be revoked. P
gave testimony during that hearing and, at a subsequent action brought by Alvarez against the shipper, American
Export Lines (D), D attempted to introduce P's earlier testimony to show Alvarez had started the fight; P doesn't
show up to ct. so case basically turns into Alvarez v. AEL
(a) here, both the D and the Coast Guard wanted to show that Lloyd was a drunken puncher, but Alvarez was
not a party to the Coast Guard v. Lloyd case --> Was Coast Guard a "predecessor in interest" so that Alvarez
can use Lloyd's prior testimony under 804(b)(1) exception?
(b) holding = the Coast Guard and Alvarez had a sufficient "community of interest" so they could be considered
the "predecessor in interest" for 804(b)(1) requirement
I. same nucleus of operative facts
II. sought to vindicate similar interests
III. both parties were interested in determining culpability and gaining a penalty for such culpability
(c) dissent: Coast Guard doesnt represent Alvarez, so they didnt really have a similar interest --> thought we
should use old common law definitions for "predecessor in interest" (i.e., has to be a privity relationship or no
dice)
(d) NOTE: there is a cir. split on this issue
d. dying declarations exception 804(b)(2)
(1) generally: a Dec's stmt., while believing that his/her death is imminent, concerning the cause or circumstances of
their impending death, is admissible in a subsequent homicide prosecution for that death
(a) TEXT: Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case,
a statement that the declarant, while believing the declarants death to be imminent, made about its cause or
circumstances.
(b) as long as there's been a hearsay rule, there's been an exception made for dying declarations
(2) requirements:
(a) Dec is unavailable (usually b/c they're now dead)
(b) Dec believed death was imminent
I. spoken with consciousness of a swift and certain doom (Shepard)
II. rationale = imminence gives more reliability
(c) stmt. was about the circumstances of his/her death
(d) the dying person had first-hand knowledge of what happened (i.e., they can't just be guessing at the cause)
I. "personal knowledge" argument = wife (in Shepard) was really just guessing about the poison, she didn't have
personal knowledge about the poison
A. FRE 602 = basic competency rule is that non-expert witnesses must have "personal knowledge" of the
facts they're relating --> the Dec is a W so they still must have personal knowledge of the facts
B. just b/c the V/Dec thinks D did it doesn't mean D actually did (i.e., we don't want to admit mere
speculation just b/c the V/Dec died)
(3) policy considerations:
(a) reliability --> people are highly unlikely to lie in the last moments of their lives
I. BUT, about 80% of homicides are caused by trauma that results in the victim bleeding out, but science has
shown that this results in lack of oxygen to the brain, which in turn negatively impacts the vic's cognition -->
with this in mind, are such dying declarations reliable?
A. ct.'s answer = don't ban such evidence b/c it's still useful --> just allow opposing party to freely
introduce evidence that the Vic's testimony and cognition might have been impaired
II. FRE 806 allows D to attack (or support?) the credibility of these W's
A. exception might be that evidence of Dec's specific acts suggesting untruthful character (admissible on
cross-exam of a testifying W under 608(b)(1)) is not allowed b/c this kind of W can't be crossexamined
(b) religious/philosophical argument --> people arent going to "soil their souls" right before they die
(4) Shepard v. US (1933) --> D was accused of poisoning his wife; prosecution wanted to admit nurse's testimony that
the wife told her she thought D did it and wanted to have a bottle of whiskey tested for poison; wife died a
week(?) later
(a) ct. says the nurse's testimony shouldn't be let in as a dying declaration b/c the wife (the Declarant) did not
make the statement [1] "w/o hope of recovery" and [2] "in the shadow of impending death"
I. at the time of the statement, wife still had a hope that she would recover; also, wife was not under belief of
imminent death b/c she didn't know she was dying then
II. statement also has to relate to the "cause or circumstances" of Dec's death

36

e. statements/declarations against interest 804(b)(3)

(1) generally: there's an exception made for stmts. which, at the time they were made, were so against the Dec's
interest that it's unlikely they would've been made if not true
(a) NOTE: this relates to the party opponent exception, but DO NOT call these "admissions" b/c this confuses
them w/"opposing party admissions" (i.e., what's now called "the party's own words")
I. the exception for admissions only applies when the Dec is a party and his/her opponent is offering the stmt.
--> an admission doesn't have to meet any of the requirements that are applied to stmts./declarations against
interest
(b) TEXT:
(3)(A): A reasonable person in the declarants position would have made only if the person believed it to be
true because, when made, it was so contrary to the a proprietary or pecuniary interest or had so great a
tendency to invalidate the declarants claim against someone one else OR to expose the declarant to civil or
criminal liability, AND
(3)(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.
(2) requirements:
(a) original Dec must be unavailable
(b) statement must have been against the Dec's interest
I. stmts. usually have to be against a money interest or other personal interest of Dec (only a few states
include stmts. against penal interest)
II. if the Dec doesn't know that the stmt. is against his/her interest, then may not be reliable
(c) Dec had first-hand knowledge of the facts asserted in the stmt.
(d) statement has to have been made by this D and prosecution wants to use it against same D
(3) Williamson blame-shifting analysis:
(a) when a Dec's stmts. are part inculpatory admission ("Ask Magnolia") and part exculpatory blame-shifting ("it
was her idea."), the exculpatory part is not admissible under 804(b)(3)
I. rationale = ct. argues that the most effective way to lie is to place a lie next to a statement against interest,
and we shouldn't allow people to get away w/this
II. stmts. that are self-serving, exculpatory blame-shifting = "collateral stmts."
III. [see also Prob. 7.24, pg. 489]
(b) conversations will need to be edited so only the stmts. against interest get in, NOT the collateral stmts.
I. only the inculpatory (against-interest) part is supposed to be admissible under this exception, but sometimes
that's really hard to parse out (i.e., blame-shifting mixed w/confessions does not allow the blame-shifting in)
(c) Williamson v. US (1994) --> D changed his story about how he got the drugs; PO's were allowed to testify re:
his statements since they were statements against interest
f. forfeiture by wrongdoing 804(b)(6)
(1) generally: this exception allows in earlier, out-of-ct. testimony when the W is subsequently tampered with by the
D (e.g., via intimidating, bribing, or murdering the W)
(a) TEXT: Statement Offered Against a Party That Wrongfully Caused the Declarants
Unavailability. A statement offered against a party that wrongfully caused or acquiesced in wrongfully
causing the declarants unavailability as a witness, and did so intending that result.
(b) policy = D's shouldn't be able to profit from their wrongdoing/illegal W tampering
(2) doctrine of forfeiture = allows hearsay statements from an unavailable W if the W is absent/can't testify due to
the accused's own wrongdoing or misconduct (i.e., the accused can't complain "if competent evidence is admitted
to supply the place of that which he has kept away")
(3) requirements:
(a) D was involved in the wrongdoing that made W unavailable
(b) the wrongdoing was intended by D to make W unavailable
I. W's unavailability can't just be a coincidence --> there must be intent, even if it's only "in part"
II. NOTE: as long as the wrongdoing was intended by the D, there's no requirement that the earlier testimony
be reliable
(c) the W was actually unavailable as a result (i.e., causation requirement)
(d) ***these elements must be shown by a PPE***
(4) US v. Gray (2005) --> D was a black widow; gov't wants to use husband #2's police statements/reports/complaints
(a) ct. holds that this Rule applies so long as W was killed/interfered w/to stop him from testifying against the
wrongdoer in ANY proceeding (not just the current proceeding)
(b) applies even if Dec is only a potential W
(c) applies if D just conspired in the scheme
(d) this "interference" can be achieved via ANY method by D
killing W, convincing W to plead the 5th via
threats, telling W to consult a lawyer before testifying is NOT wrongful

37

5. HEARSAY EXCEPTIONS WHEN AVAILABILITY OF DEC IS IRRELEVANT FRE 803

a. generally: these exceptions exist b/c of their inherent trustworthiness
(1) policy considerations:
(a) necessity --> hearsay is preferable to nothing
(b) reliability --> this evidence is BETTER than testimony b/c there are no concerns about honesty
I. circumstantial guarantees of honesty
II. ***reliability is the prevailing concern here***
(2) distinction b/tw 803 and 804 hearsay exceptions:
(a) 804 = allows hearsay only when the Dec can't meaningfully testify and other conditions are met
(b) 803 = operates regardless of whether the Dec is available as a W
b. present sense impressions & excited utterances 803(1)-(2)
(1) generally: (lapse of) time and personal knowledge of the Dec will be the key elements here in determining whether
the stmt. is a "present sense impression" or an "excited utterance"
(a) TEXT: The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was
under the stress of excitement that it caused.
(b) [see Prob. 7.31, pg. 513-14]
I. see Davis and Hammon re: Confrontation Clause issue if wife was not able to testify in court
II. why can't we use prior inconsistent statements? --> prior statement not said under oath in a hearing (just
said to cops) --> could still be used to impeach W though
III. can't use 804(b)(1) b/c the W is available here and defense wouldn't have had an opportunity to question
her (obviously)
IV. could def use this under 613, but that won't help the prosecution get statements in here
V. if W is talking about her present physical condition right now, could use 803(3) --> that's not what we want
here though
VI. 803(2) --> was W still under the stress of the event when she talked to the PO's? if so, then the
statements can come in; W was "crying and upset" which seems to indicate that she was
(2) present sense impression = a statement describing/explaining an event or condition, made while or immediately
after the Dec perceived it
(a) time frame is very narrow here --> even a few minutes can eliminate the ability to use this exception
(b) this is how many 911 tapes come in
(c) Dec generally has to be in the moment for statement to be considered "present sense"
(3) excited utterance = a statement relating to a startling event or condition, made while the Dec was under the
stress of excitement that it caused
(a) key is the stress of the event, not just the event itself (present sense) --> Dec has to still be under the stress
the event caused when they made the hearsay statement
(b) there's a little bit more leeway here as far as allowing more time to pass after the event
c. statements of then-existing mental, emotional, or physical condition 803(3)
(1) generally: concerns a statement of intent by a Dec to prove the Dec's conduct but not the conduct of another
person
(a) TEXT: The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness: [] (3): Then-Existing Mental, Emotional, or Physical Condition. A statement
of the declarants then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarants
will.
(b) policy consideration = these stmts. are acceptable b/c there's not as much danger of misperception -->
people generally know their own minds
I. also much danger of miscommunication b/tw yourself and yourself
(c) examples:
I. if V had said Im going to parking lot, brb
A. this is hearsay, but comes in under 803(3)
II. if V said I went to the parking lot yesterday
A. is hearsay, but cant come in b/c it's NOT a statement of his present state of mind --> it's a reflection
on past events/memory
III. if A is on trial, and wants to show that it was B (as a defense)
A. if B said Im going to kill that bastard, that can come in

38

B. if B said That bastard is sleeping with my wife, that cant come in

IV. NOTE: most courts will compromise Im going to parking lotto get pot comes in, where
(inadmissible) = where I am meeting D
(2) declarations of intent (future) vs. declarations of memory (past):
(a) NOTE: this Rule CAN be used to relate Dec's past impressions of what they intended to do at that time, but
NOT to relate what the actually Dec did or what other people actually did --> however, if Dec intended to do
something, it's more likely that they really did it
I. can't use this to narrate past events under the guise of "then-existing condition" b/c that's just garden variety
hearsay
II. this is why Hillmon is so contentious b/c the letters were being used to prove what Walters actually did, not
just what Walters intended to do
III. [see also notes below under Shepard v. US]
(b) future statements = Dec's statement of intention is offered to prove her future act
I. admissible b/c we consider these to be more reliable & truthful than regular hearsay
II. Ex: V's statement I am going to As wedding next week CAN be used to prove that she intended to go
(i.e., V didn't commit suicide b/c she had the intention of being alive next week)
(c) past statements = Dec's description of her present state of mind (e.g., her present memory of a past event)
is offered to prove existence of that event
I. inadmissible b/c we consider these to be less reliable & less truthful (all 4 reliability indicators are implicated)
II. Ex: V's statement As wedding was beautiful is inadmissible
(3) Mutual Life Ins. Co. v. Hillmon (1892) --> Hillmon (wife) said her husband died and ins. Co. wouldn't pay out his life
ins.; the Co. said he'd faked his death and the body was really Walters (V); Co. offered V's letters to his family and
fianc stating that he intended to go out West w/Hillmon (husband) to help prove the body could be Walters
(a) ct. allowed the letters into evidence to prove that Walters had intended to travel w/Hillmon (i.e., to show
Walters' then-existing state of mind/intent)
this was probably too broad a use of FRE 803(3) b/c it's not
supposed to be used to prove actual actions, just intentions
(b) some cts. have allowed an intermediate between FRE 803(3) and Hillmon where corroborating evidence and
Dec's stmt. could be used to prove the actions of Dec and another
(4) Shepard v. US (1933), cont. --> on appeal, gov't tried to that argue even if nurse's testimony re: V's comments
couldn't be admitted as dying declaration of V, they could be admitted as a statement of then-existing mental
condition/intent
(a) app. ct. said NO --> the statements obviously weren't being offered as such, that was just a last ditch argument
that the gov't couldn't make after-the-fact
(b) shows difference b/tw 803(3) and Hillmon
d. statements for medical diagnosis 803(4)
(1) generally: stmts. made to a physician in connection w/seeking medical treatment are usually admissible
(a) TEXT: The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness: [] a statement that:
(A): is made for and is reasonably pertinent to medical diagnosis or treatment; and
(B): describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(b) NOTE: statements made by someone other than the patient can still be admissible if they are said in order to
get informed medical treatment --> the more it looks like the stmts. were part of treatment, the more likely
they are going to get in
I. per T-burg: this rule will cover almost anyone who makes statements to a doc or medical professional for
the purpose of getting the patient care
II. there's a cir. split concerning whether docs statements to patients can come in
(2) Iron Shell test:
(a) was the Dec's motive consistent w/the purpose of the rule?
I. motive = people's self-interest --> have incentive to tell the truth to docs b/c they want to get good
treatment
II. T-burg re: little kids & med. treatment --> it's probably a good idea to tell docs that they should
make sure the child knows they should tell the truth so that the doc can do a good job; this way any
statements the doc solicits from the kid will be more likely to be admissible
(b) was it reasonable for a doctor to rely on that statement (i.e., was it a reasonable part of treatment)?
I. is this the kind of thing that reasonable docs would need to know in order to effectively treat the patient?
II. strict reading = statements of fault (i.e., A pushed me) are not technically relevant to medical treatment,
they shouldn't come in
III. liberal reading = statements of fault can be relevant to greater treatment (e.g., counseling)
(c) US v. Iron Shell (1981) --> not all of examining doc's questions to V were absolutely necessary, but they were
admissible b/c asked consistent w/goal of treating V and were reasonably necessary for a doctor to ask

39

I. ct. ruled that since the doctors questions and interview served to narrow the scope of the examination and
therefore assist the doctor, the patient's stmts. to the doctor were admissible through the doctors
testimony
(3) policy considerations:
(a) reliability --> people usually tell the truth to doctors because it's in their own interest to get
adequate/informed treatment
I. doc doesnt have to rely on patients altruism b/c they want to get well and therefore will tell the truth
(b) necessity --> W generally dont want to talk about their medical history on the stand
e. refreshing memory & past recorded recollections 803(5) & 612
(1) generally: this exception allows a W's memory to be refreshed by showing them a doc or recording of an earlier
recollection they made shortly after the event in question
(a) see TEXT, FRE 803(5)
(b) FRE 612 = governs when and how the writing gets in
(c) per T-burg: simple refreshing memory = the atty simply shows the W any writing and the W can then
remember --> this isn't covered under this Rule, it's just allowed
I. the Rule is for when W still doesnt remember
II. trial practice tip: if you can avoid using this exception, you should b/c it implies that your W is so
forgetful that they can't remember w/o help --> the jury probably won't consider their testimony very
reliable
(2) elements:
(a) W once had 1st-hand knowledge of the event
(b) the W or someone else recorded the Ws stmt. near in time to the event
(c) W lacks present memory of the event (e.g., "I no longer remember")
(d) W now vouches for the accuracy of the recording (i.e., Dec doesnt really remember now, but says she
wrote it down and trusts that she wrote the truth at the time)
I. ways for W to vouch:
A. W says they remember writing it at the time,
B. W says it was Ws habit to record things like this accurately, OR
C. W recognizes their signature and wouldn't have signed it unless it was true
II. if the W refuses to admit that he remembers the envelope or that it was true at the time, it wont get in
(Johnson)
(3) Johnson v. State (1998) --> Ct. ruled that b/c the W couldn't presently verify the accuracy of the written
recollection, the stmt. was inadmissible
f. business records exception 803(6)
(1) generally: records that are kept in the regular course of business are admissible under this hearsay exception
(a) see TEXT, FRE 803(6) [not excluded as hearsay, regardless of whether Dec is available]
(b) normally, stmts. made by a 3rd party dont come in (even if memorialized by a biz rec) unless that stmt. is
covered by an exception
I. Ex: nurses medical rec is a biz rec, but the patients stmts. therein wouldnt come in for truth w/o the
medical treatment exception
II. Ex: item return rec shows that customer said the cord was faulty; this is a biz record, but the customer's
stmts. can't come in except for some other exception
III. NOT SURE IF I REALLY UNDERSTAND THIS
(2) requirements:
(a) record made at/near the time of the event (contemporaneous)
(b) made by a person w/knowledge of the specific event OR person is recording the knowledge of someone
w/knowledge
I. either way, the person w/knowledge has to be someone w/in the company!
II. this is why Vigneau was a problem b/c the person w/knowledge (i.e., the person vouching for the truth of
the name) wasn't someone w/in the company (it was someone who may or may not have been Vigneau)
(c) it was in regular conduct/course of business to make such a record
I. record was NOT made in anticipation of litigation (Palmer)
II. if a driver who was involved in a wreck hurries back to the office to fill out a form, this is NOT a biz record
[see Prob. 7.38, pg. 542]
A. here, the driver has a motive to lie and rec is made in anticipation of litigation (but could possibly be
an excited utterance?)
B. consider the recorder's motivation and involvement
(d) that person now vouches for it
I. need to have that W in ct. or some other empEE who can testify as to the commonality of these recording
practices

40

(3) policy considerations:

(a) necessity --> no one empEE could possibly remember every biz transaction/record; also, there are way too
many people in most businesses to figure out who conducted a specific transaction on a specific day (e.g., bank
tellers can't remember every deposit they took)
(b) reliability --> mundane record keeping = no dog in the fight at the time they created the record, so no reason
to lie or fabricate
(4) US v. Vigneau (2000) --> were Western Union "send money" forms biz records admissible under 803(6) when the
WU clerk that took the order didn't independently verify the ID of the sender?
(a) NO, b/c clerk didn't independently verify that the person making the transfer was Vigneau --> thus, the biz
records could be used to prove that several transfers were made, but NOT to prove that Vigneau made them
I. these were biz records, BUT it was impossible to tell who actually sent the money b/c WU didnt actually
check ID's --> if they could prove that D actually wrote the checks, that would be a different story
II. the guy logging the check has no incentive to lie, but the person sending it has a strong incentive to lie
(b) biz records can be offered to prove that a transaction happened, but NOT to prove the truth of what the
customer was saying (e.g., can't be used to prove "the pull cord was faulty" or "this person made the money
transfer") unless the business empEE independently verified the truth of that info
(5) Palmer v. Hoffman (1943) --> was the RR's accident report a "business record" that was admissible under 803(6)?
(a) NO, b/c an accident report is inherently not "in the regular course" of business --> these are only made when
something extraordinary (i.e., the accident) happens
I. RR is not in the business of creating this TYPE of record --> if there was a guy whose job it was to sit at
Mile 2 and check off if the trains light was on, that would be admissible
(b) basically the only reason RR Co. would make such a record is b/c they anticipate litigation --> they have a
"tremendous incentive to fabricate"
(6) absence of a record in a business record 803(7)
(a) per T-burg: this rule really isnt necessary b/c saying that there's no record isn't really hearsay so you
shouldn't need an exception to admit it
(b) an omission an assertion that record doesnt exist (i.e., if there's no assertion, there's no hearsay) --> it's
probably just in the Rules b/c some judges are stupid
g. public records & reports 803(8) & 803(10)
(1) generally: this exception is similar to the biz records exception; is very important b/c it covers a wide variety of
material that parties need in civil and criminal trials
(a) see TEXT, FRE(8) [public records] & (10) [absence of a public record]
not excluded as hearsay, regardless of
whether Dec is available
(b) per T-burg re: interaction b/tw public records & biz records: if something doesn't quite qualify as a public record
under 803(8), you can try to shoehorn it in as a biz record under 803(6) --> cts. are kind of leery of letting
attys do this, but it sometimes works
(2) requirements:
(a) written report/record or stmt. of a public official or agency
(b) the official or agency had first-hand knowledge of the facts reported
(c) the official or agency had a duty to make a record or report
(d) NOTE: police reports and biz records can't come in if offered against the D in a criminal case --> those are
excluded under 803(8)(A)(ii)-(iii)
(3) Beech Aircraft Corp. v. Rainey (1988) --> Beech manufactured planes the Navy used; Rainey was a Navy pilot whose
plane crashed and her spouse brought suit against Beech; the Navy has JAG do an investigation as to the cause of
the crash. Navy contended the plane was faulty, Beech says it was pilot error
(a) a JAG report indicates that it is impossible to determine the exact cause of the crash and may not have been
pilot error
I. ct. held that the JAG report is admissible b/c the Senate Committee, in writing FRE 803(8), considered a
report to contain fact finding, opinions, and conclusions
II. ct. ruled that the House Committee wrote that fact finding excluded opinions and conclusions
(b) ct. allows in the opinion and conclusions that are made in the reports b/c the opinions were very consistent
w/the factual findings
I. difference b/tw fact and opinion can be really difficult to judge re: hearsay --> T-burg doesn't really care if we
know the difference b/c it's hard
II. semantically, Rule says the report may come in if it sets out facts, not that only facts may come in
("reportssetting forthfactual findings" are admissible)
"factual finding" may include "conclusions or
opinions that flow from a factual investigation"
(c) result = "As long as the conclusion is based on a factual investigation and satisfies the Rule's trustworthiness
requirement, it should be admissible along w/other portions of the report."
(4) police reports & business records
(a) US v. Oates (2d Cir., 1977) --> gov't chemist's report in a drug case

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(b) US v. Hayes (10th Cir., 1988) --> IRS records in a tax-evasion case
(c) US v. Weiland (9th Cir., 2005) --> certain prison records
6. THE RESIDUAL HEARSAY EXCEPTION FRE 807
a. generally: this is sort of a catch-all hearsay exception that can sometimes be used if the hearsay stmt. doesn't qualify for
any other exception but it's still fairly reliable + very needed
(1) TEXT:
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay
even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can
obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party
reasonable notice of the intent to offer the statement and its particulars, including the declarants name and address,
so that the party has a fair opportunity to meet it.
b. requirements:
(1) circumstantial guarantees of trustworthiness (i.e., reliability)
(2) it is offered as evidence of a material fact
(3) it has more PV than any other evidence available through reasonable efforts (i.e., necessity)
(4) admission will best serve the purpose of the Rules & justice
(a) D's can sometimes argue that b/c allowing the evidence would violate their 6th Amend. CC rights, admission
would not be in the interests of Rules & justice
c. the "near miss" doctrine
(1) majority rule = ????
(a) this relates to how cts. should determine which evidence may come in under 807
I. always go to actual exception first, if it cant fit, go to 807 for analysis
(b) "near misses" = hearsay statements that almost fit under one of the recognized exceptions, but narrowly fail
to meet one of the exceptions conditions/elements (i.e., a hearsay exception applies, but doesn't quite cover
the statement in question)
(c) "close enough" doctrine = 8th Cir. would probably not say that near misses get in, but just that 807 may
allow it in
(2) US v. Laster (2001) --> D was accused of ordering chemicals used to make meth; chemical co.'s records could've
verified D's orders, but the sole owner and operator of the chemical co. died before trial (so biz records
exception was close, but wouldn't work)
(a) majority: if an exception applies, but doesn't quite cover the statement, it can come in under Rule 807
(b) dissent: if an exception applies, but doesn't quite cover the statement, it should NOT come in under Rule 807
--> the Rule should only cover statements where no other Rule applies at all (i.e., only things that can be
covered by 807 are things that are really out of left field)
(c) this is a controversial case and there's no clear answer as to whether the Near Miss Doctrine is applicable
(3) NOTE: this controversy was mooted when the authors of the restyled Rules changed the wording of 807 to say
"even if the statement is not specifically covered by a hearsay exception"
(a) per T-burg: now the fed. ct. practice is that if it's not covered by any other exception, then you can use 807 -->
i.e., it can't be a "near miss," it has to be hearsay that really doesn't fit into any other exception
d. Dallas County v. Commercial Union Assurance Co. (1961) --> in case against the ins. co, county says it was hit by lightning,
and therefore covered under its policy. Ins. co says that beams were charred from a prior fire, not recent lightening (i.e.,
the building fell b/c it was old); ins. co wants to use a newspaper article from 1901 to prove there was a previous fire
(1) newspapers are technically hearsay and not covered by any specific exceptions
(a) ins. co tried to use the biz records exception, but a newspaper article isn't really isnt a "biz record" of the
newspaper
I. however, article wasn't necessarily based on personal knowledge --> the author could've just interviewed
someone and reported that
(b) ins. co tried to use the "ancient documents" exception
I. personal knowledge was also an issue w/this argument b/c the article wasn't really clear about whether the
reporter had personal knowledge
(2) reliability --> in a small town, everyone would've known if there was or wasn't a fire, so this is likely a true story
and likely to be accurate
(a) many people would consider a contemporaneous document to be more reliable than someone's memories
that are 50+ year's old
(b) also, we would consider this kind of doc reliable b/c what kind of small-town reporter would lie about a big
fire? --> someone else in the community probably would've called him/her out on a lie or a mistake

42

(3) necessity --> even though D could've probably found someone who was still alive from 1901, they'd be pretty old
by 1961 and may not have the best memory
(a) "ancient documents" exception = allows in statements in a doc that existed at least 20+ years before the
current case, so long as they were considered authentic at the time they were made --> FRE 803(16)
(4) under todays Rule, this would likely come in under 807 b/c this is the only cited case in the comments to this rule
VIII. CONFRONTATION & COMPULSORY PROCESS
A. THE CONFRONTATION CLAUSE & HEARSAY
1. generally: the 6th Amend. guarantees citizens the right to confront witnesses testifying against them
a. TEST:
(1) is this a criminal case?
(2) is the W against the D?
(3) did D get a chance to cross-examine W?
(4) was W's statement testimonial?
b. 6th Amend. = In all criminal prosecutions, the accused shall enjoy the rightto be confronted with the witnesses
against him
(1) questions = what's a "W"? what's a "confrontation"?
(2) possible purposes of the CC:
(a) some argue that this means that every D has the right to confront every W face-to-face, BUT there was never
a time when there weren't any hearsay exceptions (even before we had a Constitution, we had English
common law hearsay exceptions)
(b) some argue that CC merely embodies the hearsay rule --> same rationales apply
I. Ohio v. Roberts (1980) --> only evidence that meets one of the deeply rooted hearsay exceptions and is
particularly trustworthy is admissible
II. THIS IS NO LONGER THE RULE ANYMORE --> was replaced by Crawford (2004)
c. what's guaranteed by the CC? i.e., what evidence may not be admitted against a criminal D (even if otherwise allowed by
rules of evidence) because of the CC?
(1) narrow view = CC only applies to "witnesses" (i.e., those who testify at trial), not hearsay Dec's at all
(2) broad view = opposite extreme, CC bars the use of all hearsay against a criminal D (at least all hearsay by persons
not subject to cross-exam)
(3) middle ground (a few of many possibilities):
(a) Ohio v. Roberts = CC doesn't cover firmly rooted hearsay exceptions, or hearsay w/"indicia of reliability"
(b) Crawford & progeny = CC covers all "testimonial" hearsay, regardless of "firmly rooted" exceptions or "indicia
of reliability," and testimonial is somewhat broadly defined
(c) Justice Thomas's idea = only extrajudicial stmts. contained in "formalized testimonial materials" such as
affidavits, former testimony, depos, confessions, post-Mirandized interrogation (idea expressed in various
dissents and concurring decisions)
d. things to remember:
(1) the CC can bar evidence not barred by hearsay, hearsay can bar evidence not barred by the CC, and both the CC
and hearsay can bar the same evidence
(a)

(b) barred by hearsay ONLY:

I. certain prior statements by W on the stand (no CC problem, but still hearsay not w/in any exception)
II. idle chatter by out-of-ct. Dec (plain old hearsay, but prob not "testimonial")
(c) barred by CC ONLY:

43

(2)
(3)
(4)
(5)
e.

44

I. certain biz rec (covered by hearsay exception, but still inadmissible under 6th Amend., e.g., crime lab
reports)
(d) barred by both:
I. stmts. like, "My brother told me that he saw the D rob the bank. I'm leaving the country now and will never
testify!"
(e) remember, it only takes one to keep the evidence out, BUT you should do the hearsay analysis first, THEN go
to CC arg. --> most cts. avoid jumping to the Const. interpretation unless they have to
the hearsay rule the CC
CC applies only in criminal cases
only applies to witnesses against the accused
while the hearsay rule can change over time and state lines, the CC does NOT change

historical background
(1) Mattox v. US (1895) --> D was convicted of murder primarily based on the testimony of 2 W's who died before D
was re-tried at a later date; D said their testimony shouldn't be admitted at the later trial b/c he couldn't cross
examine them
(a) ct. disagreed --> the W's earlier testimony was admissible b/c D had the opportunity to cross examine them
at the earlier trial (i.e., Confrontation Clause of the 6th Amend. was preserved b/c D had an earlier
opportunity to confront W's)
(b) ct. also made an analogy b/tw this and the rationale for allowing dying declarations
(2) Pointer v. Texas (1965) --> said that 6th Amend. is applicable to the states
(3) California v. Green (1970) --> made 2 broad holdings:
(a) if W is available, prosecution can ask W about the prior statements, allowing the prior statements to come in
b/c W is able to be cross-examined
I. no 6th Amend. violation if the D has the ability to cross-examine
II. reiterated that prior statements made by W are admissible --> 801(d)(1)(A)
(b) if prosecutor has made every effort to produce W but they are unavailable, and the prior statements were
made under oath a subject to cross-exam of the accused, the CC doesn't make them inadmissible
I. see also Ohio v. Roberts (1980) --> rules of reliability & necessity
(4) Maryland v. Craig (1990) --> it violates the CC for a state to say that child victim/W's would per se be presumed to
suffer trauma by in-person questioning (MD had a law that allowed child victim/W's to testify in another room or
behind a screen)
(a) however, this procedure is ok where the ct. makes an individualized finding that the child would suffer severe
emotional distress and be unable to communicate
(b) Scalia dissent: said that any time the W doesn't have to confront D face-to-face, regardless of the reason,
violates the CC
(5) Ohio v. Roberts Era:
(a) firmly-rooted hearsay exceptions are admissible --> must be necessary and reliable
(b) NOTE: was replaced by Crawford

Hearsay & the 6th Amendment flowchart:

45

2. THE CRAWFORD ERA

a. Whorton v. Bockting (2007) --> held that Crawford was a new rule that overturned Roberts
(1) non-testimonial hearsay is NOT barred by the CC --> the CC "therefore permits admission [of non-testimonial
hearsay] even if they lack indicia of reliability"
b. Crawford = Sup. Ct. overruled the old Roberts test
(1) NEW TEST = the CC only applies to testimonial evidence (i.e., D has a right to confront a W offering testimonial
evidence)
(a) if stmt. is non-testimonial, there's no CC issue
(b) if stmt. is testimonial, then there must be an opportunity for cross-exam, or else the stmt. is "absolutely
barred"
(2) BUT, "absolutely barred" is not exactly true --> there are exceptions:
(a) Dec appears at trial and D can cross-exam them = no CC violation
(b) Dec is "unavailable," but D had a chance to cross-exam the Dec earlier = no CC violation
(c) out-of-ct. stmts. not offered for the truth of the matter asserted (i.e., non-hearsay stmts.) are NOT covered by
the CC
(d) forfeiture by wrongdoing
(e) dying declaration, 804(b)(2)
(f) [see also exceptions to Crawford CC below]
(3) if testimonial, must satisfy Const. reqs. of CC
(a) can come in if there was a prior opportunity to cross AND W is now unavailable
(b) D is entitled to cross-exam at some time, before or during trial, or else the evidence is barred
I. if not offered to prove the truth of the matter, then admissible
II. if the D has forfeited his or her right to confrontation, then the testimonial statement can be admitted
III. dying declarations can be admitted
(4) Crawford v. Washington (2004) --> D stabbed a man who allegedly tried to rape his wife and claims self-defense; D's
wifes statement seems to contradict D's claim of self-defense; D's wife cannot testify do to spousal privilege laws;
govt played Ds wifes prerecorded statement at his trial; D argued that this infringed in his CC rights because he
cannot cross a recording
(a) relied a lot on the Lord Raleigh case (old English treason case) --> Lord R. got convicted, Sup. Ct. used this to
show why the Roberts test was wrong
I. ct. rules that the wifes statements made out of court were testimonial and therefore barred unless D had
the ability to cross-examine (which he didn't have here)
II. Framers would've known this case, but that still leaves open the questionis this situation what the CC
meant to protect against?
(b) majority's new CC argument:
I. W isnt testifying, which means that D cannot cross her --> this is unconstitutional
II. under the Roberts reliability test, admissibility of the evidence could go either way
III. "indicia of reliability" is not a good test for constitutionality --> it gives judges too much discretion
c. "testimonial" hearsay vs. "non-testimonial" hearsay
(1) obviously testimonial:
(a) any "solemn declaration" made to establish/prove a fact (i.e., prior testimony, suppression hearing, affidavits,
grand jury testimony, depos, confessions that implicate the D) (Crawford)
(b) sworn affidavits, depositions, prior testimony or confessions (Crawford)
(c) actual prior testimony in ct.
(d) solemn proceeding (i.e., solemnity of oath or other trappings of a formal investigation) --> J. Thomas'
favorite
(2) obviously NON-testimonial:
(a) casual, overheard remarks to others (Crawford)
(b) co-conspirator statements in furtherance of conspiracy, 801(d)(2)(E) (Crawford)
(c) some biz records (Crawford, Melendez-Diaz)
(d) past stmts. of trial W's (Crawford)
(e) stmts. by unavailable Dec. previously subject to cross-exam by the D (Mattox)
(f) stmts. admitted by forfeiture/wrongdoing (Giles)
(3) may or may not be testimonial:
(a) statement to PO's not during interrogation
(b) gov't business records used by investigators/prosecutors
(c) letters
(d) use Primary Purpose Test to decide these close calls [see notes below]

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d. exceptions to Crawford CC
(1) D already had a chance to cross examine the W (Mattox)
(2) W shows up to trial (CA v. Green)
(3) not using the statement for the truth assetted
(4) forfeiture by wrongdoing (Giles)
(a) have to show that the bad guy acted w/the purpose of preventing the W's testimony --> committing a murder
wouldn't allow a dead W's testimony in past the CC unless the D murdered the W w/the intent of preventing
them from testifying [see, e.g., Prob. 8.2, pg. 643]
(5) dying declarations (mentioned in passing)
e. the Primary Purpose Test (what is "testimonial"?)
(1) generally: the Primary Purpose Test = Davis / Hammons approach to iffy cases (i.e., stmts. may or may not be
"testimonial")
(2) TEST = look to the MAIN purpose of the statement, as many stmts. have multiple reasons they could be offered
(a) must focus on the primary purpose of the statement:
I. was it taken/made to deal with an emergency, OR
II. was it taken/made to gather evidence in preparation of a prosecution?
(b) this is an objective test > what would a reasonable person in situation be intending to do?
I. consider purpose based upon what an objective third-party observer would believe
A. when police involved, focus on their purpose
B. when police not involved, focus on Dec's purpose
II. "purpose" = what was the purpose of the Dec in taking/hearing the statement?
A. why? --> b/c it starts to seem more like testimony when PO is there, especially if PO is testifying as to
what Dec. said
B. actual purpose being served is relevant consideration, but not explicitly
C. also need to ask, who was the person taking the statementwas it a PO, a doctor, a family member?
depending on the person and their relationship to the W, that will affect how the objectivity of the
stmt. is perceived
(c) the Davis ct.'s inquiry = did the Dec. speak [1] to end an ongoing emergency, or [2] to "prove past events
potentially relevant to later criminal prosecution"?
[1] is not testimonial and is admissible b/c we consider emergency stmts. to be more reliable
[2] is testimonial and is inadmissible b/c we consider such stmts. to be less reliable
(3) the Primary Purpose Test in domestic violence cases
(a) one distinction re: admissibility of 911 calls (from Judge Greenberg)
I. "testimonial" = stmts. made when Dec is contemplating being a W in future legal proceedings
II. "non-testimonial" = stmts. made as a mere cry for help
(b) Davis W calls 911, says, Hes beating me again, hes using his fist
I. ct. says: non-testimonial b/c 911 call = cry for help, not attempt to get someone convicted. Not
establishing past facts, talks about present situation --> 911 stmts. were admissible and D's conviction was
upheld
A. ct. allows in Ds name b/c that was useful information for the PO b/c it may give them leverage in the
response. His identity is relevant to the response, not just conviction
(c) Hammon PO's show up a domestic violence scene. W says there is no problem. Once the H and W are in
different rooms, W tells PO about abuse. W signs an affidavit. H seemed pretty composed however
I. ct. says: testimonial b/c once the PO's are there and have the two separated, there was no more
emergency --> W's stmts. were NOT admissible and D's conviction was reversed
A. affidavits will almost always be testimonial b/c if there's time to get a sworn statement, there probably
isnt an emergency any more
(4) Michigan v. Bryant (2011) --> Man shot through his front door. He gets to a gas station, talks to PO and says, Rick
[Bryant] shot me, then later dies
(a) majority: lets the statement in past CC --> reasons that there was an ongoing emergency b/c the shooter was
still at large (i.e., the purpose of the questions was to find the shooter and end the danger)
I. ct. spends a lot of time on the question of what was the primary purpose of the PO's questions?
II. Danger to Public At Large --> If a situation endangers the general public, it is possible to extend the
emergency situation to include information that might normally be considered testimonial
(b) Thomas concurrence: agrees that it should come in because this was NOT testimonial
(c) Scalia dissent: he seems angry and believes that this was testimonial (broad definition) --> says that Ct.
shouldn't consider just reliability of the stmts. b/c that's what the Ct. did away with when they got rid of
Roberts
I. according to Scalia (and Ginsburg), this holding turned the Davis inquiry (see above) into a mere reflection of
the "excited utterances" hearsay rule, but that was kind of what Roberts did and Crawford was supposed to

47

have done away with that reasoning ("reliability tells us nothing about whether a stmt. is testimonial" -->
reliability is not supposed to be the test anymore, at least officially)
3. CURRENT ISSUES
a. since 6th Amend. only applies to testimonial hearsay, non-testimonial can still come in (subject to the Due Process
Clause)
(1) not a huge problem b/c most hearsay rules would catch this
b. line b/tw conversations and interrogations re: police interactions
c. biz records & the CC
(1) does the lab tech who made the actual report have to testify in a criminal case?
(a) Forensic Experts and Tax Examiners
Reports are made in the course of business
Reports are often made in preparation of trial and therefore Testimonial
(2) Bullcoming v. New Mexico (2011) --> D was convicted of a DWI based on a laboratory blood test; an earlier case
(Melendez-Dias) held that the results of such tests are testimonial, so in order to be admissible, the results have to
be vetted by in-ct. testimony of the analyst who did the test; here, the test was vetted by a similar analyst (kind of
like a business record), but not the same one who actually did D's b.a.c. test
(a) majority: Sup. Ct. here essentially upholds Melendez-Diasunless the person who ran the test is there to be
crossed, the record/report cannot come in under the CC
Sotomayor concurrence: outlines what is NOT
covered under this
(b) dissent: this is a huge, unnecessary hassle; FN1: shows why you would want to cross the lab tech --> scientific
testing "is only as reliable as the people who perform it" (Kagan dissent in Williams v. Illinois)
(c) NOTE: this opinion also shows the fracturing of the Crawford Coalition re: definition of "testimonial"
I. FN 6: gives a good def of testimonial, but it didnt get enough votes (b/c Thomas wants a more narrow def
of testimonial) --> Ginsburg: "To rank as 'testimonial,' a stmt. must have a 'primary purpose' of 'establishing
or proving past events potentially relevant to later criminal prosecution.'"
A. he agreed that this specific situation/evidence was testimonial, but didn't like the Opinion's definition
presented here
II. FN 6: Biz recs get in because they are not testimonial, they are commonplace
(3) Williams v. Illinois (2012) --> issue here is DNA evidence; seems pretty similar to Melendez and Bullcoming b/c there
is a report that says DNA found on the V matches the D, BUT, here the tech is an expert (other cases the tech
was a lay witness)
(a) trial judge made his conclusion on the Cellmark report, but the Cellmark report-maker was not there for
cross-exam --> prosecution used another tech who did similar work to talk about the test
(b) govt wants to know how many people they will have to bring in to get this testimony in b/c it's going to be a
huge hassle --> D says as many as goddamn necessary for me to have my 6th Amend. right
(c) plurality: rejects D's CC claim (upholds conviction), but none of the justices seemed to agree on the correct
reasoning to support this result
I. Alito (wrote the opinion): [1] the statements in the Cellmark report weren't offered for their truth (b/c the
tech's stmts. were offered to prove reliability of the process, not necessarily to prove the result of the test),
and [2] stmts. in the report weren't testimonial (stmts. aimed to resolve an ongoing emergency and they
had no inculpatory, prosecutorial purpose)
II. Thomas concurrence: he agreed that this specific situation/evidence was testimonial, but only b/c it wasn't
very "formal and solemn" --> he didn't agree w/Alito's other reasoning, but nobody else agreed w/Thomas,
either
(d) dissent: would have treated this case just like Bullcoming and Melendez-Dias --> didn't think there was any
reason to change the rule for DNA testing
d. dying declarations
(1) Crawford would seem to imply that dying declarations conflict w/the CC and are thus inadmissible (b/c they're
usually made for the primary purpose of proving that the D killed them for a later prosecution), unless it can be
proven that the D killed them to silence their testimony
(2) BUT, the 4 Bullcoming dissenters (Kennedy, Breyer, Alito, and Roberts), plus probably Thomas, would most likely
say that there is a common law exception for dying declarations, thus they are admissible
e. domestic violence victims
(1) Adult Abuse or Domestic Violence
Much law and scholarly articles concern the difficulties the victims
have with testifying
Many times, their previous statements are considered Testimonial
but the victims still refuse to testify
(2) statements of child victims:

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(a) generally, the younger the Dec. and the more private his/her disclosure, the more likely it is that a court will
say the stmt. is non-testimonial (People v. Loy) --> younger children have less motive to make a testimonial
stmt. b/c they're usually not focused on making stmts. for prosecutorial purposes (???)
(b) sometimes cts. will look to the motives of the questioner (rather than those of the child) to determine
whether the stmts. were testimonial (People v. Cage, Bobadilla v. Carlson) --> was the questioner trying to solicit
the child's stmt. for future prosecutorial use?
(c) the trend now is for cts. to examine the stmts. and actions of both the Dec. child and the questioner in light of
all the relevant circumstances of the encounter
(d) most cts. have deemed children's stmts. to doctors and nurses to be non-testimonial (Giles v. California )
B. THE BRUTON DOCTRINE
1. generally: Bruton asks the question may the trial ct. permit the jury to hear the accomplice's out-of-ct. confession so long
as the ct. carefully instructs the jury to consider the stmt. only against the accomplice?
a. basic situation: this doctrine concerns an out-of-ct. admission made by an accomplice that implicates both them and D;
accomplice is tried jointly w/the D, but is then unavailable/refuses to testify at trial; assumes the accomplice's testimony
would be admissible against him/herself (stmts. against interest), but NOT against the other (non-confessing) D
(1) criminal case w/multiple D's
(2) a confession/stmt. is properly admissible against D1 (as stmt. against interest)
(3) but not admissible against D2 (b/c is hearsay w/o another exception)
(4) and D2 can't cross-exam W (W usually = D1)
(a) thus, there has to be a CC problem or Bruton doesn't apply --> it can be hearsay, but also be non-testimonial,
and there would be no CC problem
b. "leakage" analysis = will the effect of D1's stmt. "leak" into the jury's consideration about D2's guilt?
(1) Sup. Ct. said YES, and this is a CC problem for D2, even if a limiting instruction is given to the jury to try and
prevent this "leakage' --> ct. has to do something to protect D2 from UP resulting from the stmts. admissible
against D1
(2) ways to fix this leakage:
(a) severed trials for D's
(b) separate juries
(c) testimony by confessing accomplice
(d) bench trial
(e) redacting the stmt. to remove references to D2 (Gray)
I. problems w/redaction = this changes the literal truthfulness of the stmt., could lead jury to false conclusions
(f) [see pgs. 695-96 for possible solutions to this CC problem]
(3) would one of these options fix the CC problem?
c. differing opinions re: what Bruton opinion was seeking to avoid
(1) "devastation" --> we want to keep out evidence that would have a "devastating effect" on the non-speaking D
(2) reliability --> out-of-ct. stmts. are unreliable hearsay; we don't really care if they're admissible against the D who
spoke them, but we don't want these to hurt the non-speaking D
2. Bruton v. US (1968) --> decided before Crawford. D (Bruton) was tried for armed robbery, and he and the other Co-D (Evans)
were tried together. Co-D confesses and that confession is introduced at trial with a limiting instruction telling jury they
could only consider it as against Co-D
a. this was decided before Crawford, but should come out the same way
b. Issue: is this evidence admissible against Bruton? --> NO.
(1) The confession comes in against the Co-D because it is a party statement and statement against his own interest,
BUT the jury would have to edit out the blame shifting statements
(a) under FRE, evidence was admissible against Evans as his own admission (party admission); was actually
inadmissible b/c of a Miranda problem, but that's another issue
(2) Is it admissible against Bruton? Maybe some of them where Co-D took blame.
c. majority: Sup. Ct. found the limiting instruction was useless, jury probably still used stmts. against Bruton despite the
limiting instruction
(1) since Co-D was unwilling to testify under the 5th Amend., Sup. Ct. found that this was a violation of the CC when
used against Bruton
(2) re: limiting instructions --> they are still considered appropriate curative measures in some situations, BUT in
this situation, the stakes were just too high
d. dissent: thought that the jury should be trusted enough to take a limiting instruction seriously when reaching a verdict
(i.e., they would have kept the old rule); thought that this would create too much of a burden on the judicial system b/c
cts. would have to do more separate trials

49

3. Cruz v. New York (1987) --> D1 and D2 were tried jointly for the murder of a gas station attendant during a botched robbery;
D1 had confessed to police during videotaped confession (re: both D1 and D2's involvement); D2 had earlier confessed to
another man (Norberto) that he'd been involved in the robbery; D1's video confession was admitted w/jury instruction
saying it should only be used against D1 and Norberto's testimony was also admitted at trial
a. issue: does Bruton apply where the D's own confession is offered into evidence where that confession corroborates a
Co-D's confession?
(1) Govt said: Bruton is focused on devastating nature of Co-D confessions against D. Otherwise limited instructions
work. Since D2 also confessed, the devastating damage is already done
(2) D2 said: Not true. The other confession (D2's confession to Norberto) was shaky, and so D1's confession was
lynchpin for jury, and therefore should be blocked (i.e., it was still pretty devastating to D2
b. holding: NO --> under the CC, the Co-D's confession (here, D1's confession) is NOT admissible against D (here, D2)
even if a limiting instruction is given and even if D's other confession is admissible (i.e., doesn't matter that D2 was
already kind of screwed by his own confession, D1's videotaped confession was still not admissible unless he was willing
to get on the stand and testify)
c. does a limiting instruction fix CC problem when the non-speaking D also confessed later? --> that depends on which
opinion you hold re: what Bruton was trying to avoid [see notes above]
(1) devastation --> does limiting instruction protect the non-speaking D from "devastating effect" of the speaking D's
stmt.?
(a) in Cruz, some justices tried to say allowing in D1's confession wasn't that devastating to D2 b/c of his own
later confession
(2) reliability --> does a limiting instruction have an effect on the perceived reliability of the speaking D's stmts. (i.e.,
would the stmt. still be considered reliable w/a limiting instruction)?
4. Gray v. Maryland (1998) --> Co-D confesses to murder, implicates D; at trial, confession was redacted to get rid of "Gray,"
but this was done in a way that made it really obvious that the confession was referring to D in the deleted portions
a. holding/outcome: if you're going to use the redacting tactic to cure a CC problem, you have to do it in a way that will
actually fool the jury --> you don't wanna make it really obvious that stuff has been deleted, but you also don't want to
make it sound really weird [e.g., Prob. 8.9, pg. 716]
(1) Ct. finds this redaction was insufficient, BUT they can be ok if done correctly
b. dissent: didn't think that there is a CC/Bruton problem when a Co-D's confession does not facially incriminate the D -->
even if a redacted confession clearly implicates D, it doesn't facially implicate D, so these confessions should be allowed
(following rule from Richardson v. Marsh, 1987)
C. COMPULSORY PROCESS
1. generally: CP = no fair process if only one side gets a knife. CP makes it more likely that the jury will get it right if they hear
W's from both sides
a. the 6th Amend. enshrines the compulsory process right in the Const. of the US
(1) "In all criminal prosecutions, the accused shall enjoy the rightto have compulsory process for obtaining W's in
his favor."
(2) gives the D a chance to put on a "full and robust" defense
(3) cuts the D a little slack to let in W's
(4) only available in criminal cases
b. 5th, 6th, and 14th Amends. may trump hearsay rules to allow evidence for a criminal D
(1) 6th Amend. = the right to compel W on Ds own behalf
(2) 5th / 14th Amends. = DP Clause (i.e., right to present a complete defense)
2. analysis & details:
a. D must have a meaningful opportunity to put on a complete defense (Chambers and Holmes)
b. if it is (1) critical to D and (2) reliable (bears assurances of trustworthiness)
c. Holmes --> the 3rd party confessions were:
(1) close in time to the events
(2) corroborated by other evidence
(3) NOTE: this is a narrow holding, b/c otherwise D could create a defense by having a 3rd party make some
confession to his friends
Sup. Ct. didn't totally condemn 3rd-party guilt rules like the one in this case, rather,
they cast them as expressions of the principle of FRE 403
d. the right is still available, even if the govt has a strong case (Holmes)
(1) arguably, that makes it even more necessary for the D
(2) BUT if the Ds theory for the evidence is really dumb, then it's inadmissible --> D's don't have a Const. right to
bullshit the jury
e. usually, this rule is used to compel 3rd party guilty Ws or to accuse the 3rd party of committing the crimes (usually they
are adverse Ws)
f. basically, prosecution can't unreasonably restrict the D's right to present a full defense by presenting necessary and
reliable evidence

50

3. Chambers v. Mississippi (1973) --> cop shoots D; gov't calls another PO to testify that D shot the vic PO, but there were
other W's who said that D didn't shoot the vic PO, plus there was evidence to support possible conviction of an alternative
suspect (McDonald)
a. Alt suspect had a gun that was similar to the murder weapon, and confessed to 3 diff. people, including the police. He
later recanted the confession.
(1) confessed in a sworn statement to Ds lawyer, later said he only did so to get a cut of a civil suit against police
(motive to lie here)
(2) McDonald also confessed to 3 of his friends (here, there is no motive to lie)
(a) ct. said:
I. They werent sworn statements
II. 804(b)(3) could allow Friends in ONLY if they become unavailable
III. It would work for McD though because it was against his liberty interest
(3) trial ct. wouldn't allow McDonald to testify as an adverse W, so D had to rely on McD's written stmt. and other,
circumstantial testimony
(a) MS's hearsay rules allowed an exception for stmts. against the Dec's pecuniary interests, but NOT those
against Dec's penal interests --> McDonald's stmts. were hearsay and against his penal interests, so there was
no state hearsay exception to allow D to bring them in at trial
I. MS's "voucher rule" = said that a party could not impeach his own W and was bound by anything the W
says while on the stand (i.e., you couldn't cross-exam a W you called about their past inconsistent stmts.,
etc.) --> D called McDonald as W, so this MS rule said D couldn't impeach him re: his later recanting
A. Sup. Ct. thought this MS trial rule was dumb, and it was also later reversed by FRE 607
II. If this case were decided under the FRE, D could ask McD about the prior confessions under the prior
inconsistent statement to impeach under 607, or under 613
III. OR 801(d)(1)(A)Prior inconsistent statements. --> Maybe. It will depend on whether the sworn
statement at the lawyers office reaches the level of 801 to use it for the truth
A. per T-burg: thinks it sounds like a deposition
b. holding: conviction reversed --> Sup. Ct. said this trial violated D's Due Process rights b/c he was not allowed a fair
opportunity to defend against the gov'ts accusations, nor was he allowed to confront/cross-exam W's and call his own
W's
(1) why would the Sup. Ct. decide to step in for this particular case?
(a) this evidence was super critical to D's defense --> Chambers violations usually don't arise unless the evidence
excluded was really critical to D's defense
(b) this evidence was very likely to be reliable/truthful
(c) per T-burg: the voucher rule + the narrow definition of D's "interest" created a particularly unfair and
prejudicial result for this D
c. FRE analysis (thought FRE's didn't exist then):
(1) is hostile cross-exam of McD allowed?
YES, 607 (any side can attack any W --> abolishes voucher rule)
(2) what things could D reasonably cross-exam McD about?
(a) could ask about McD's confessions to the other people
I. McD's prior confessions could come in for their truth (under 801(d)(1)(a), if said during an earlier
"proceeding") OR just to impeach
II. 804(b)(3) stmts. against interest? --> NO, b/c McD was available to testify
III. FRE's do cover stmts. against penal interest and pecuniary interest
IV. are the confessions credible? --> maybe, could point to the fact that McD said it to several diff. people w/o
much motive to lie
d. what was really going on here?
(1) per T-burg: the evidence that was excluded was so PV, that it doesnt seem fair to convict D w/o allowing the
evidence in
(2) Sup. Ct. finds it unconscionable under the Due Process Clause --> this just wasnt a fair trial
(a) they dont actually say the MS evidence law was dumb, but that the trial wasnt very fair
(3) NOTE: this case can be narrowed to its specific facts. The holding is very narrow.
e. this technically wasnt a 6th Amend. CP case (it was technically a 14th Amend. DP case), but has become the poster child
for CP
(1) this case is like the flip side of the CC
(a) CC prevents bad witnesses from coming in and giving faulty testimony PLUS cross will provide the good
(b) CC tightens up the rules and lets in less evidence
4. Holmes v. South Carolina (2006) --> another wacky state law forensic evidence was very strong against D; D claimed that
the evidence was planted; state has a 3rd party guilt rule (based on Chambers), saying you can only enter such evidence if the
evidence is basically definitive
a. holding: Sup. Ct. finds that it doesnt make sense to use this definitive std means that the Ds ability to bring this type
of evidence depends on how strong the case is against him
b. the grounds for decision is difficult are pinpoint

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D. CHAMBERS vs. CRAWFORD:

1. Chambers tends to get difficult evidence admitted
criminal D says, "You should bend the rules for me to allow this
evidence in b/c my liberty is at stake"
2. Crawford tends to keep difficult evidence out
opponent says, "This violates my CC right and there's no good reason to
allow this evidence in over that right"
IX. LAY OPINIONS & EXPERT TESTIMONY
A. LAY OPINIONS FRE 701
1. generally: you're allowed to give lay opinions if your comments aren't expert opinions
a. TEXT, FRE 701: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witnesss perception;
(b) helpful to clearly understanding the witnesss testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
b. common law usually allowed 2 broad types of lay opinions:
(1) basic inferences that can't be reduced down to mere sensory observations
(a) Ex: we would allow a W to say that in their opinion, D "looked furious" w/o making the W describe specific
sensory observations that = "looking furious"
(2) opinions that can be reduced down to basics, but that still gain from W's inference
(a) Ex: W testifies that D "looked drunk" --> even though you could describe certain actions/behaviors that make
someone look drunk, it's more helpful to the jury to say "D looked drunk" than to just list a bunch of
behaviors
2. opinions of lay W's only come in if:
a. opinion is rationally based on the Ws perception
b. helpful in understanding Ws testimony OR the fact in issue
(1) "helpful" = [1] jurors can't judge the matter itself, and [2] this particular W's opinion does, indeed, assist them
(2) Ex: D sells cigarettes to underage girl; he wants to prove that she looked at least 18 at the time; D could bring in
other W's who knew/saw girl to say that in their lay opinions, she did look at least 18
(a) no specialized knowledge required, rationally based on perception, and would help the jury b/c they prob
couldn't judge how the girl looked on an everyday basis --> [see Prob. 9.2, pg. 736]
3. inferences
a. W inferences about appearance, manner, degree of size, color, distance, etc. are almost always admissible, BUT you will
need foundational facts stating where the W got those facts
Ex: "D was 6 feet." "How do you know?" "He was about
my height"
4. no "expert testimony in lay clothing" --> lay opinions may NOT be based on scientific, technical, or other specialized
knowledge w/in scope of 702
a. NOTE: Rule makes no allowance for necessity --> if the evidence is "expert" testimony, a lay W still can't present the
testimony even if there's no expert to call
b. gang-talk/criminal code NOT ok for lay W
(1) this would prob be considered expert testimony/knowledge --> [Prob. 9.6, pg. 756]
(2) Peoples (8th Cir.) --> PO couldnt testify about code words in recorded conversation unless qualified as an expert
(3) BUT, if it's something like a code, and it's really easy to break code and most people could do it, then it will
probably be admissible as lay testimony --> [Prob. 9.4, pg. 747]
c. computer programs results --> not OK for lay W to testify about
(1) US v. Ganier (2006, 6th Cir.) --> lay W cant present results by running commercially available software, obtaining
results and reciting them; even though the software itself was common, the way the W interpreted the results
required specialized, expert knowledge
d. "particularized knowledge" exception = a lay W w/actual involvement in the case could testify about her own,
specific business value/profits/loss, even though that would normally require an accountant or other expert
(1) "particularized knowledge" = lay W has "expert knowledge" on one specific topic/situation (i.e., W has "expert
knowledge" about her own business, but not necessarily the industry in general)
e. Advisory notes re: illegal substances
(1) a lay W may testify that a substance appeared to be a narcotic so long as a foundation of familiarity with the
substance is established. --> [see Prob. 9.3, pg. 739]
(a) suggests that un-specialized knowledge is something anyone can learn from common experience, even if it is
NOT a universal experience
(2) there is NOT a bright line b/tw specialized and nonspecialized knowledge

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B. EXPERT TESTIMONY FRE 702

1. generally: 702 governs testimony by experts
a. TEXT: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
(a) the experts scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
b. requirements to be an "expert" W:
(1) W has "expert" qualifications [see below]
(a) party seeking admission must present a foundation re: why this person is an "expert" (e.g., Joe Pesci explaining
why Marisa Tomei was an expert in car maintenance in My Cousin Vinny)
(2) the jurors cannot judge this matter themselves
(a) W's testimony must be helpful to the jury
I. "proper topic" = the testimony must concern a topic the jurors prob. couldn't understand, and the W can't
just tell the jurors what legal result to reach in the case
(b) does this W's opinion actually help the jurors judge the matter?
(3) is there a sufficient factual basis for the W's opinion? [see below]
(4) expert used reliable methods in reaching their expert opinion [see below]
(5) is evidence relevant and not UP under 403?
2. qualifications of an "expert" FRE 702(a)
a. generally: W must have knowledge, expertise, skill, training or education that will help fact-finder to understand the
evidence or to determine a fact at issue
(1) you don't have to have a special degree to be an "expert" --> expertise can be based on knowledge OR skill OR
training OR education OR education
(a) just need to establish a sufficient background for the W to prove that they do, indeed have the necessary
expertise
(2) Ex: W testifies that pot is Colombian based on its shape and the effect of his high. He has "expert qualifications"
b/c he sold pot and smoked it many times --> [see Prob. 9.5, pg. 749]
(a) he cant be a lay W b/c lay W cannot identify pot based on country
(b) can he be an expert W? it depends --> we will want more information about his experience w/foreign weed
b. US v. Johnson (1979) --> trial ct. allowed testimony of an "expert" W who claimed to be an expert in identifying types and
growing locations of marijuana; Govt expert says it is impossible for human being to tell country of origin of weed
(1) trial ct. determined that the W was an expert based upon his extensive experience w/marijuana
(2) Ds expert says he can tell the difference, but judge says the jury is/should be free to chose who they think is right
c. Jinro America v. Secure Investments (2001, 9th Cir.) --> app. ct. held that the expert W that was allowed to testify by the
trial ct. was improper
(1) app. ct. held that even though the "expert" W was a private investigator in Korea and had been trained by the
American military and given command positions in Korea, the W's knowledge was merely based upon reading
newspapers, he had no formal training, and he was in the business of investigating corruption (so of course all the
Koreans he knew exhibited bad behavior)
(2) W's testimony was kind of bullshit b/c his "expert opinion" was basically just that, in his experience, "all Koreans
are shady"
(3) per T-burg: however, it might be possible to have someone testify about the business practices of a certain group
of people, but W needed to establish a better foundation for his knowledge (and not sound like such a bigot)
3. what may an expert rely on? FRE 703
a. generally: An expert may base an opinion on facts or data in the case that the expert has been made aware of or
personally observed. --> 703 guides what an expert can base his/her opinion on
(1) TEXT: An expert may base an opinion on facts or data in the case that the expert has been made aware of or
personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in
forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or
data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
b. facts/data must be of a type generally relied on by experts in the particular field (i.e., must use reliable methods &
data)
(1) even though expert may have lots of knowledge in a certain area, their opinion still has to rely on sufficient facts
and data re: the current case
(2) once expert got the data, they must have reliably applied that data and their own knowledge/training in making
their decision
c. can rely on hearsay (but cannot announce that hearsay to the Jury)

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(1) experts can give opinions based on hearsay (where lay W's cannot). BUT if the facts are otherwise inadmissible,
they may NOT state the underlying facts to the jury unless the PV substantially outweighs UP in helping jury
evaluate the expert opinion
(2) can rely on facts provided by other W's
(3) can rely on disputed evidence
(4) when can this hearsay be admissible to the jury?
(a) when it is a learned treatise
(b) if proponent of the expert wants to let it in and the PV substantially outweighs the bad stuff (reverse 403)
(c) if opponent wants to let it in for impeachment
d. can read from a learned treatise to the jury (even though this is technically hearsay under FRE 803(13))
e. Melton
an expert can base testimony on one W (even if other side has 40 W that say the opposite)
(1) experts are allowed to use evidence that normally would be inadmissible, such as hearsay evidence, in order to
form their opinions if the evidence is commonly relied upon in their field of investigation or research
4. legal conclusions on ultimate issues FRE 704
a. generally: experts can't testify as to legal opinions or conclusions (e.g., "He definitely did it") unless there is a case that
concerns foreign law
(1) TEXT:
(a) In General Not Automatically Objectionable. An opinion is not objectionable just because it
embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant
did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.
Those matters are for the trier of fact alone.
b. opinions on D's mental condition/intent:
(1) the old common law said experts weren't supposed to give opinions on any ultimate issue (i.e., not on a legal
principle or element) --> the FRE's changed this w/this Rule
(2) BUT, expert W's still CANNOT testify as to ultimate conclusion re: whether a criminal D had the requisite mens
rea or was insane when committing a crime --> only the jury is supposed to decide this
(a) per T-burg: one way you can get around the prohibition on requisite mental state testimony is to pose a
hypothetical to the W that's very similar to the current case
I. Ex: expert W couldn't say, "This D bought all these materials so he must have been intending to make meth."
--> But atty could say, "If someone bought all these materials, what do you think their purpose would be?" W
could then say, "If someone buys all these materials, they are probably trying to make meth."
II. [see Prob. 9.10, pg. 760]
c. opinions on another W's credibility:
(1) cannot bring in an expert to attack the credibility of another W --> ultimately, the credibility of a W is supposed to
be left up to the jury [see Prob. 9.11, pg. 764]
(a) expert cannot state whether or not he or she believes the V
(2) State v. Batangan (1990) --> expert W can state that these are the kinds of behaviors child abuse victims exhibit
(a) usually, the credibility of a W is supposed to be left up to the jury and another W can't testify on the
credibility; HOWEVER, this case was different b/c it was a child molestation case and the expert W was
testifying about the child-V's credibility
I. the reason an expert's testimony was necessary here (re: the child victim's credibility) was b/c the behavior
of abused children is somewhat counterintuitive to an average jury --> kids may give conflicting testimony
when confronted w/an abuser, especially when the abuser is a family member, but that doesn't necessarily
mean they're lying
(b) important b/c abused children's' behaviors are likely abnormal to other times of crime victims
(3) State v. Guilbert (2012) --> ct. here overrules precedent and allows D to offer expert testimony re: the unreliability
of eyewitness ID
(a) pro admittance = juries often overvalue eyewitness ID, so it's important to inform them that many eyewitness
ID's are unreliable
I. also, under 701 (b/c the eyewitness ID W is going to be a lay W), we want to allow in as much lay W
testimony as long as it's helpful to the jury; same for expert W testimony under 702 --> what's the harm in
allowing in more testimony so long as it's helpful?
(b) con admittance = maybe it's not necessary to tell the jury that these ID's aren't that reliable; you could also
just allow for cross-exam to test W's reliability, give appropriate jury instructions telling jury to consider this,
etc.
5. disclosing the facts or data underlying an expert opinion FRE 705
a. TEXT: Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first
testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on crossexamination.

54

b. Hygh v. Jacobs (1992, 2nd Cir.) --> the app. ct. held that the trial ct. improperly allowed an expert W to make statements
to the effect that the D (a PO) used deadly force against P and the D's conduct was improper
(1) however, the ct. ruled that the expert W's statements were harmless error since the trial judge gave a good jury
instruction as to the real legal standards for the jury to consider
C. ASSESSING THE RELIABILITY OF SCIENTIFIC METHODS (Daubert & Frye)
1. generally: there are special rules that come into play when evaluating/assessing the reliability of scientific evidence that an
expert W relied upon --> the first version was outlined in Frye, then that was rejected in favor of a new standard in Daubert
(though MO still uses the Frye Doctrine)
a. expert testimony issues
(1) "black-box" problem --> certain experts are assumed to have skill without transparency
(2) conflict --> can have experts that disagree
(a) battling experts = no problem
(b) focus is on the methods used, not the conclusions met --> reasonable people can disagree, so long as they are
both qualified and using good data and reliable methods
(3) gate-keeper --> seems rather strange to allow a judge to determine whether an expert is truly and expert and
used the correct expert procedure
(4) good expert --> there is a sliding scale based upon what the P can reasonably bring into court
b. possible solutions to bad science
(1) Ex: breast implant article [pg. 818]
(a) concern about hired gun experts
(b) also concern that the company doing the studies profits from the product being tested
(2) judge could get the opinions of disinterested experts beforehand
(a) maybe there were some experts doing research in this area earlier, but they wouldn't be allowed to testify
under Frye standard --> judge could allow their testimony
(b) problem: this could lead to delay as courts pay experts to test it
(3) send these kind of P's to admin tribunals/hearings for mass tort claims (e.g., the Vaccine Board)
(a) eliminate cts. entirely b/c judges and juries don't have the requisite knowledge --> say P's don't have to prove
D's fault, just causation, and the admin tribunal would order D to write them a check
(b) problem: this prob wouldn't get past Congress b/c it's pretty radical
(4) "failure to research" as a claim --> if Co is put on notice that there is a potential problem, the company should
have to do the research about it
(a) hurdles = obvious political problems (may be considered too radical). Then, practically, what is the standard
for notice?
(b) what if it takes a long time for the science to develop?
(5) have a fund like the Vaccine Board, but allow/require companies who make potentially-harmful products to fund
the research
(a) since there are some things on the market which may be dangerous, and recovery is impossible w/o expert,
over-inclusive Daubert application leads to this bad result
(b) too-strict leads to the result where no one does the research
(c) problem: early P's (before fund is established) would go uncompensated
2. the Frye Doctrine (i.e., the "general acceptance" standard)
a. Frye v. US (1923) --> D wants to enter evidence of systolic blood pressure test result (ancient polygraph) to prove
innocence
(1) outcome = ct. refused to admit the evidence because the test was not sufficiently established to have gained
general acceptance in the particular field in which it belongs.
(2) this is also known as the General Acceptance Test
(a) pg. 794: and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in which it belongs.
(b) ASK: what is the field the expert is in?
(c) ASK: do professionals in that field consider the deduction reliable?
b. NOTE: not the law anymore in fed. cts., but this is still good law in criminal cases in Missouri
(1) State Bd of Registration for Healing Arts v. McDounough (statutory rule for this), a.k.a. the "McDounough Rule"
(a) per T-burg: the MO Sup. Ct. would probably say, "Forget Daubert, forget Frye, forget McDounough, go read
the MO statute."
(2) "civil and administrative" cases in MO use the fed. rule (i.e., Daubert)

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3. the Daubert method (i.e., the reliability standard)

a. Daubert v. Merrell Dow Pharmaceuticals (1993) --> P's suing a drug co. claiming that a drug designed to prevent nausea in
pregnant women caused birth defects wanted to present expert testimony of animal studies, properties of the drug, and
re-evaluation of prior studies; D argued that 30 studies published over many years all concluded that the drug did not
cause birth defects
(1) ct. enters a new test for scientific evidence --> the judge must believe that the experts testimony is based upon
reliable scientific knowledge
(a) eventually, the ct. rules that the P's experts were NOT reliable
(b) the ct. here didn't actually apply the 5 factors to the case at hand, but they proposed them in this case's dicta
(2) purpose = how should the ct. evaluate if this person is a quack or not?
(a) not every case will present all these factors, but they should all be considered if possible
b. Daubert's 5 factors for when testimony comes in:
(1) can experts technique or theory be tested? (i.e., "falsifiability")
(a) has it been subjected to the possibility of being falsified?
(b) these factors aren't really useful in all situations --> they're not the most useful for experiential experts (e.g.,
the "weed expert" from earlier hypo) b/c their expertise is hard to test/verify
(2) is it subject to peer review and publication?
(3) what is the known or potential rate of error of the technique or theory when applied?
do standards and
controls exist (and how are they maintained?)
(4) has the technique or theory been generally accepted in the scientific community?
(a) this was the only factor under Frye, but now it's just one factor of several
(5) "fit" --> will this info actually help the jury (i.e., is it relevant)?
c. 5 more factors to consider (not in the opinion):
(1) were opinions developed expressly for the purpose of testifying (if no, it comes in)
(a) was the method or scientific knowledge was developed independent and not based upon preparation for
litigation? --> pre-existing research is better, but not always available, so litigation-induced science can suffice
(b) if the only experts that support your position are ones you paid, that's not going to be super reliable
(2) has expert unjustifiability extrapolated from an accepted premise to an unfounded conclusion (if no = admissible)
(3) has expert adequately accounted for obvious alternative explanations?
(4) is expert being as careful as he would be in his regular professional work outside his paid litigation consulting?
(a) implies Experts are not professional experts
(5) is field of expertise claimed by the expert known to reach reliable results for the type of opinion the expert would
give?
Ex: tool markings (where those have been shown to be unreliable in general)
d. "hedonics" testimony [see Prob. 9.16, pg. 856]
(1) have to do both the 703 analysis and the Daubert analysis
(a) is Smith qualified?
yeah, sure (if you assume this is a real measurement)
(b) will his testimony assist the jury?
yes (if you assume this is a real measurement), no (if you think this is
impossible to measure b/c it should be a moral judgment)
(c) is W's opinion based on proper data as require by 703?
sure, it's based on the "willingness-to-pay"
methodology
(d) did expert use reliable methods in reaching his opinion? --> Daubert analysis
I. depends, is this theory falsifiable? --> no, there's a real "black box" problem here
II. is method/theory peer reviewable and published? --> yes, but only by this W
III. error rate? --> impossible to determine
IV. generally accepted theory? --> maybe by people who like/agree with hedonics, but not by all people and/or
economists
(e) fit (i.e., did W use the right data)?
this is also kind of impossible to determine
(2) NOTE: most cts. reject hedonic damages data on Daubert-related grounds, but at least one ct. (the 7th Cir.) allows
it
4. Daubert vs. Frye
a. Daubert seems like more novel theories would get in, BUT it is stricter toward accepted theories that dont have
scientific underpinnings
b. Frye seems to be the opposite of Daubert, BUT T-burg thinks that Frye states are really using Daubert factors, so there is
no real difference b/tw states re: what does/ does not get in
(1) overall, judges are getting more skeptical of experts and junk science, BUT govt usually gets benefit of the doubt
with its experts
c. if your expert gets thrown out, the case is usually over (it's hard to prove anything w/o expert)
(1) Daubert family was SoL --> they didnt get a trial, meaning D wins
(2) "deus ex machina" concern (pg. 743) --> we want real experts, not just a last minute pop scientist
(a) Dr. Palmer is no longer used as an expert (pg. 746)
(b) Dont get your expert Daubert-ed out

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d. re: securities litigation --> you cant lie about company to boost stock prices. Only covers material lies
(1) means experts are being called to determine whether something was material. (i.e., to show that market
responded to the lie)
(2) since loss is a factor in sentencing, you will need an expert to prove loss
e. re: fingerprint evidence -->judges are getting more cautious about this, i.e., mere numerical assertions likely wont
come in (99.9% match)
f. NOTE: if your theory is new, Daubert is going to be easier on getting your theory in (b/c it's obvs not going to be
"generally accepted" yet); if your theory is based on a old theory, Frye would prob. be easier to get it in, BUT Frye is def
gonna be harder on getting in new theories (???)
(1) seems to have made the scientific evidence test more strict than Frye (???)
5. polygraphs & lie detector tests
a. how does polygraph evidence fare under Daubert's "relevance & reliability" standard?
(1) almost no jx.s routinely allow polygraph evidence to be introduced (except New Mexico)
(2) polygraph tech is not always accurate and may be subject to substantial user error, but juries tend to overestimate
its reliability
b. diagram of polygraph
situations:
Ex. 1: D testifies (or has alibi
witness testify). Can
prosecution obtain and
introduce polygraph evidence
that the witness lied?
Ex. 2: To protect his gf, A
confesses to a crime. Police
examine him, and he passes the
polygraph. Then, after breaking
up w/the gf, he recants. May
prosecutors introduce the
pass to show that the D was telling the truth (i.e., that his confession was accurate)?
Ex. 3: Prosecution calls W who says she saw the D commit a crime. May D introduce evidence that she failed a
polygraph?
Ex. 4: D passes a polygraph. May he introduce evidence to support his claim of innocence? Consider Chambers and
Compulsory Process Clause cases.
c. potential polygraph problems:
(1) if we say D's can choose whether to admit their polygraph results, this could undermine the tests' accuracy (e.g., "If
I pass it, I'll admit it. If I don't, we'll throw it out.") --> D would be pretty relaxed while taking the test and any lies
might not trigger the "lying" result
(2) [Prob. 9.15, pg. 846]
(a) did D actually believe the machine would work/was accurate?
(b) did D actually think this evidence would be admitted?
(c) per T-burg: this is really a 401, 403 problem
d. US v. Crumby (1995) [fn. 118, pg. 823] --> D is charged w/being an inside man in a bank robbery and wants to present
evidence that he passed a polygraph test
(1) holding = ct. argues that the polygraph test results may be admitted under Daubert b/c they are based upon science
and have been developed for around 25 years
(a) BUT, ct. restricts the use of the polygraph test results to situations where the D's truthfulness is called into
question --> if D testifies and is impeached by govt, then polygraph can come in as W rehab evidence
(2) before this, 9th Cir. found these tests were per se inadmissible under Frye, BUT under Daubert, the outcome is
different
(a) new facts/research --> polygraphs are now peer reviewed, low error rates, pretty accurate result (will give
more false positives than false negatives). It has been tested now
(b) T-burg: has problems w/the "supporting" studies here
I. lying about a card suit isnt the same about lying about a crime (i.e., no real-world conditions tested)
II. the test subjects didnt represent all society
III. peer reviewed journal of polygraphs = a journal of all people who think polygraphs work (i.e., self-selecting
bias) --> this shows the problem of defining which group has to accept a theory for it to be considered
"generally accepted"
(c) BUT on the other hand, at least the research was not created specifically for litigation
I. also, juries are terrible at detecting truth vs. lies --> even a shitty lie detector test may be better than a jury
II. also, there is some evidence to suggest that juries aren't overwhelmed by lie detector evidence AND they
are very receptive to limiting instructions

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(3) ct. says polygraph evidence is admissible if:

(a) D is offering the evidence
(b) D has to testify (can't just rely on the polygraph results)
(c) can only be used to bolster D's credibility after the gov't attacks your credibility
I. kind of treated as a "prior consistent stmt." similar to 608(a) (character impeachment rehab), but not exactly
the same
II. different b/c rehab W usually just say you usually tell the truth. Here, the polygraph test implies that you
are telling the truth about this case
III. also, attack via cross isnt a character-for-truthfulness attack --> "impeachment" doesnt mean "character
attack"
(4) does this holding make any sense?
(a) T-burg says: idk, this isnt really in Daubert --> Daubert answers whether this is a good expert, not when they
can come in as a threshold question
I. this is a clear effort to compromise
(b) per T-burg: this is a 403 argument in Daubert clothing
e. US v. Scheffer (1998) --> Sup. Ct. said that a criminal D does NOT have a Compulsory Process right to offer polygraph
evidence (i.e., CP Clause does not guarantee this)
(1) you do NOT have a Const. DP right to put on polygraph evidence (maybe if you offered truly shitty polygraph
evidence a criminal D, but this is rare)
(a) D made a Chambers-like arg. that the polygraph results were "critical to his defense" and supported by
"persuasive assurances of trustworthiness"
(2) the jury is supposed to be the lie detector re: W's, and polygraph evidence "diminishes the jury's role in making
credibility determinations"
(3) "fMRI" lie detection test = functional magnetic resonance imaging test
f. US v. Semrau (6th Cir., 2012) --> D was a doc accused of healthcare fraud based on his company's practice of "upcoding"
patients' bills (i.e., charging them for a more expensive service they didn't need/receive); D wanted to admit fMRI
evidence that proved he honestly tried to be compliant w/billing procedure and any "upcoding" was merely a good faith
mistake; dist. ct. refused to admit fMRI evidence
(1) after doing the Daubert analysis, app. ct. affirmed dist. ct.'s refusal to admit the fMRI evidence based on finding that
existing fMRI research did not meet the "rate of error and controlling standards factor"
(a) insufficient rate of error factor b/c the test had never been given to people charged w/actual crimes --> had
only been tested in a controlled lab environment
(b) insufficient controlling standards factor b/c there was no practical way to independently verify the truth of D's
statements (i.e., the "black box problem," similar to the pot "expert") --> only D knew the truth of whether
he was lying when he denied intentional wrongdoing
(c) financial bias issue --> the people doing the test (the W) had a lot of financial skin in the game here b/c their
company's success was riding on the ct. believing their test was accurate
(2) testimony was also inadmissible under 403 analysis b/c it wasn't that reliable and didn't have much PV
6. assessing the reliability of NON-scientific expertise
a. generally: FRE 702 applies to all experts, and so does the Daubert analysis (Kumho Tire)
(1) public comments to 702 amendment in 2000
(a) choices re: 702 and Daubert = (1) dont change it; allow the court to fix it later if necessary (2) if we love
Daubert so much, legislature should put it in writing (3) if we hate Daubert so much, we have to rewrite the
rule
(b) Big Business (Chemical Manufactures, Corporate/Insurance Defense, etc.) like Daubert b/c they believe it
makes it harder to get experts in (pg. 856); P's lawyers didnt like it
b. Kumho Tire Co. v. Carmichael (1999) --> a tire on a vehicle driven by Mr. Carmichael blew out and caused an accident
killing 1 passenger and injuring others; the P's (the survivors and the decedents representative), sued the tire co. (D),
claiming that the tire was defective
(1) P has expert who will testify that the tire blowup was caused by the design of the tire, not the overuse
(a) D moved to exclude W's testimony on the ground that his methodology failed to satisfy FRE 702, which states
that if the W's "scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence," then it should be allowed in
(2) the trial ct. analyzed the non-scientific technical expert under the Daubert standards and refused to admit the
evidence
(a) trial ct. ruled that the technical experts testimony was not based upon a valid evaluation procedure or
method, W didn't present his error rate, methods weren't peer reviewed, etc.
(b) the app. ct. refused to overrule the trial ct.'s decision stating there was no abuse of discretion
(3) RULE: FRE 702 gives a dist. judge discretion to determine relevance AND reliability of evidence in regards the
circumstances and facts of a particular case

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(a) before this case, cts. usually only applied Daubert analysis to "scientific" testimony
Ct. here says Daubert
applies to ALL expert testimony admitted under 702, whether it's scientific or whether it's just based on
expertise
(4) here, the W was really a tire expert, but no one believes he'd write the same report for the other side
(a) P failed the test, but the expert couldnt explain why that didnt mean it was overuse
(b) if he gets to change the rules, there is no way to assess error rate, and there is no evidence that this 4-factor
test was accepted by the tire expert community
(c) per T-burg: it wouldnt be outrageous for this case to have gone the other way
7. syndrome evidence
a. per T-burg: it's probably easier to get in syndrome evidence if the expert W is not opining about the victim in the case
at hand (i.e., easier if the W is just talking about the syndrome and its symptoms generally) --> otherwise expert would
be making a legal conclusion on an ultimate issue
(1) see also FN 4, pg. 866 (Kinney) --> "the opinions of experts who have examined the victim are much more likely
to be seen as vouching for the victim's story than the opinions of experts who have never examined the victim."
b. State v. Kinney (2000) --> ct. does 702 analysis re: expert testimony on Rape Trauma Syndrome
(1) will the testimony re: RTS help the jury? --> depends, if the Vic was behaving contrary to common behavior, then
probably yes
(2) NOTE: judge still has to ask if this W is a real expert and if the jury actually needs to hear this, but they DON'T
have to do the full Daubert analysis every time if another ct. has already held that this specific kind of evidence is
otherwise admissible
c. opposing views on PTSD evidence: [pgs. 872-73]
(1) New Mexico ct. says, "We should allow it b/c it's in the DSM-IV."
(2) Louisiana ct. says, "Just b/c it's in the DSM-IV doesn't mean it's a real thing--that just means we have a label for the
theory. Cts. should do a case-by-case analysis."
(3) T-burg: he agrees w/LA more than NM
8. assessing the reliability of the forensic sciences
a. generally: forensic evidence isn't always very accurate and most of it hasn't really be independently tested in the field (as
opposed to in a lab), but it gets used all the time and there's no real way to keep it out of ct. at this point
(1) per T-burg: it would be nice if we had some kind of "best practices" guidelines for gathering and testing forensic
evidence, but we don't have anything like that right now --> [see pg. 893]
b. issues:
(1) are these various forensic tests accurate?
(a) the status quo answer is yes, but subsequent research and analysis might prove this wrong sometime down the
line
(2) assuming the expert is going to testify, how can we make sure jury doesn't give their testimony undue weight?
(a) don't call them "experts" in front of the jury
I. trial practice tip: you could still call them "Dr." or something like that if you want the jury to know they're
an expert anyway
(b) don't let the expert over-promise re: the reliability/accuracy of their results
I. if their ballistic testing evidence isn't that reliable, don't let them say "99% match" --> make them just say
"match" or something else entirely
(c) give good jury instructions re: telling jury not to overestimate the expert's testimony
(3) why did the ct. use the stricter Daubert standard for a criminal D but not a civil tire manufacturer?
(a) per T-burg: cynically speaking, it's probably b/c corporations hold more sway in our society
X. AUTHENTICATION, IDENTIFICATION, & THE "BEST EVIDENCE" RULE
A. AUTHENTICATION & IDENTIFICATION
1. authentication
a. generally: this relates to checking that the evidence is actually what it purports to be
(1) sufficiency is evaluated on the Huddleston standard
(a) judge must conclude that a jury could reasonably find that the document is authentic
(b) BUT it must still satisfy hearsay objection (where judge must find by a PPE)
(2) chain of custody considerations:
(a) evidence that is common, must have a strict chain of custody
(b) evidence that is uncommon, does NOT require a strict chain of custody
b. FRE 901 = rules about authenticating evidence for admission in ct.
(1) TEXT: (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

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2. examples of authenticated evidence FRE 901(b)

a. (b)(1) = testimony of a W with knowledge (that the item is what it claims to be)
(1) pictorial testimony = can use eye W to verify the events and the depiction of a video recording
(2) Simms v. Dixon (D.C., 1972) --> ct. ruled that the party admitting photographs does not need
to bring in the photographer to prove their authenticity; the party seeking admission of photographs merely needs
to ID the photographs as a portrayal of certain accurate facts that are representative of the W's personal
knowledge
(3) RULE = you dont actually need photographer to authenticate a photo so long as an eye W will testify that it is an
accurate/fair representation of what happened
(a) in other words, another W (not the actual photographer) can testify that a photo "fairly and accurately
represents" the layout of what was happening in the picture
b. (b)(2) = non-expert opinion about handwriting based on familiarity not gained in preparation for litigation
(1) the meaning of for purposes of litigation is solely for litigation
(2) if handwriting is studied to capture the suspect, then not "for litigation"
c. (b)(3) = Comparison by an expert W or the trier of fact (w/an authenticated specimen)
d. (b)(4) = Distinctive Characteristics (like appearance, contents, substance, internal patterns, taken with all the
circumstances)
(1) State v. Small (2007) --> W was allowed to testify that, after returning a phone call, the W spoke w/a man w/a
Jamaican accent, identified himself as Dominique, and claimed the victim owed him money
(a) the ID was sufficiently authenticated by the fact that the W had a peculiar knowledge of the D
(b) correct standard is Huddleston, 104(b) --> [see Prob. 10.5, pg. 906]
(2) obscure and/or unique characteristics, even thought not enough by themselves, can add up to = valid ID of a voice
(i.e., accent + "Dominique" + familiarity w/vic = valid ID)
e. (b)(5) = Opinion about a voice
(1) CAN use lay W to testify that voices sounded the same
(2) CAN'T use expert W to testify that voices are alike
(3) controversy over whether computers can be used to analyze voices
f. (b)(6) = Evidence of a phone conversationevidence that a call was made to the number assigned at the time to:
(1) (b)(6)(A) = a particular person, if circumstances (including self-ID) show the person answering was the one called
(2) (b)(6)(B) = a particular business, if the call was made to a biz and the call related to biz reasonably transacted over
the phone
g. (b)(7) = evidence about public records
h. (b)(8) = Ancient Docs or Data Compilations
(1) US v. Stelmokas (1997) --> ct. held that the documents were sufficiently authenticated by the expert W testifying on
behalf of the prosecution re: records of the D's military actions in WWII Lithuania (was acting in concert w/the
Nazis)
(2) you can put on a "parade of authentication" to validate some evidence if you want
i. (b)(9) = Evidence about a process or system
(1) "silent witness" theory = can use a W to testify as to the accuracy of the system, installation methods, location,
viewpoint, and/or process of a recording --> esp. re: video, photo, & recording evidence (Wagner v. State)
(2) in order to admit video recordings under the "silent witness" theory, judge must consider:
(a) evidence establishing time & date
(b) any evidence of tampering or editing
(c) operating capability of the equipment as it relates to the accuracy and reliability
(d) procedure employed
(e) testimony identifying the relevant participants
j. (b)(10) = Methods by statute.
3. self-authenticating evidence FRE 902
a. see TEXT, FRE 902(1)-(12)
B. THE "BEST EVIDENCE" RULE
1. generally: when proving the content of a writing, you must produce the original or exact duplicate of a document as opposed
to a W's description of the document to prove that it is what it claims to be --> applies in some, but not all, cases
a. rationales for rule:
(1) writings, recordings, and photos are more detailed and nuanced than many other forms of evidence
(2) differences in the fine details of language are often important
(3) proving such details is often hard b/c these things are susceptible to forgery
(4) even when forgery/fraud aren't issues, human memory is often not as good/accurate as the thing itself
b. the Rule aims to bar litigants from presenting human recollections of the content of writings, recordings, or photos in
place of the physical item itself
(1) Ex: perjury evidence

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(a) testimony --> Rogers (committee counsel) --> ct.

I. "here's what he said, pretty much" = OK
(b) testimony --> stenographer --> transcript --> ct.
I. "here's what the transcript said he said" = also OK
(c) compare these to the following:
I. testimony --> stenographer --> transcript --> random W (reads it, then testifies) --> ct.
II. "here's what the transcript says: he says, pretty much" <-- this violates Best Evidence Rule
c. this rule only applies if you NEED to prove the content of the writing (or other medium); rule is based on a belief that
when a case turns on the content of a writing, recording, or photo, a litigant must present such evidence in the most
precise form possible
(1) this applies when it's NOT something that happens to be recorded
(2) K's, wills, etc. = you have to have the original
(3) covers docs that themselves have legal effect
(a) Ex: P in Seiler had to have to have actual, valid copyright docs filed before Star Wars came out to prove his
"copyright violation" claim
(4) Seiler v. Lucasfilm (1987) --> in a copyright claim, P claimed that George Lucas infringed upon his earlier drawings
that were very similar to Lucas' Scoutwalker; P had to prove that he created an original concept drawing before the
time when Lucasfilms created its concept drawings; thus, P's original concept doc is required and it must be either
the original or verified as an accurate representation
(a) here, P didn't have copies of the drawings he made before the movie came out. He wanted to introduce
drawing-copies of previous drawings
(b) there is no way this evidence should come in. Of course his later drawings will look like Lucas' Scoutwalker
b/c he'd already seen the movie --> b/c P didn't have the original doc and only had drawings made after those
made by Lucasfilms, P failed to provide the best evidence
(c) here, the content of the drawing MUST be proved (i.e., P needed the original or an exact copy of the original)
2. definitions FRE 1001
a. TEXT:
(a): A writing consists of letters, words, numbers, or their equivalent set down in any form
(b): A recording consists of letters, words, numbers, or their equivalent recorded in any manner.
(c): A photograph means a photographic image or its equivalent stored in any form.
(d): An original of a writing or recording means the writing or recording itself or any counterpart intended to have
the same effect by the person who executed or issued it. For electronically stored information, original means any
printout or other output readable by sight if it accurately reflects the information. An original of a photograph
includes the negative or a print from it.
(e): A duplicate means a counterpart produced by a mechanical, photographic, chemical, electronic, or other
equivalent process or technique that accurately reproduces the original.
3. requirement of an original (i.e., the best evidence rule) FRE 1002
a. the general "best evidence" rule = the original is required to prove the content of a document
b. TEXT: An original writing, recording, or photograph is required in order to prove its content unless these rules or a
federal statute provides otherwise.
4. admissibility of duplicates FRE 1003
a. duplicates are admissible in most situations so long as the reproduction process excludes the possibility of human
transcription error (i.e., handwritten copies not admissible)
(1) TEXT: A duplicate is admissible to the same extent as the original unless a genuine question is raised about the
originals authenticity or the circumstances make it unfair to admit the duplicate.
b. a duplicate is admissible unless:
(1) there is a genuine question of the duplicate's authenticity
(2) the circumstances make it unfair to admit the duplicate in lieu of the original
c. US v. Jackson (Neb. 2007) --> after a LE officer posed as a 14-year-old girl in an online chat with the D, the officer cutand-pasted several chat comments by the D into another document and the prosecution wanted to admit that doc (not a
full copy of all the chats)
(1) the ct. ruled that since the actual, entire conversation b/tw the PO and the D was in dispute in the case, the cutand-paste was not acceptable as an original doc; also, the cut-and-paste doc was bad b/c the PO had inserted his
own editorial comments into it
5. admissibility of other evidence of contents FRE 1004
a. governs when non-original evidence may be admitted in spite of being not "best evidence"
(1) such evidence is allowed when/if the original is not available b/c it was lost/destroyed, is impossible to get, is
allegedly protected by a privilege, controlling party won't produce it, or the doc isn't that important to the central
issue
b. TEXT: Admissibility of Other Evidence of Content. An original is not required and other evidence of the content
of a writing, recording, or photograph is admissible if:

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(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice,
by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at
the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
XI. PRIVILEGES
A. BACKGROUND INFO
1. generally: privileges apply when evidence is good, maybe even great, BUT the evidence is inadmissible b/c of a privilege
it's
not an argument of relevance, prejudice, probative, reliability, etc.; instead, there is a shield that protects against disclosure of
the evidence
a. for privilege to apply, you must reasonably believe it is there (e.g., if reporter is there, it is not privileged)
b. the original draft of FRE 501 privilege rule:
(1) first draft had detailed descriptions of the various privileges (e.g., doc-patient, marital testimony)
(2) BUT, there was so much controversy over this that Congress threw them out in the final rule
(3) in the end, Congress decided to leave defining of the privileges up to the common law "as interpreted by the
courts in light of reason and experience"
c. rationales:
(1) we want people to feel free and open to speak with their lawyers or priests
(2) Clergy = religious expression and communication
(3) Medical = furthering acquisition of health care
B. NON-ATTY PRIVILEGES (i.e., Professional Privileges) THE BASICS
1. FRE 501 = this Rule provides for the existence of privileges in fed. cts., but common law "as interpreted by the cts. in light
of reason & experience" is what governs the specifics
a. TEXT: Privilege in General. The common law as interpreted by United States courts in the light of reason and
experience governs a claim of privilege unless any of the following provide otherwise: the US Const., fed. Statute, rules
prescribed by the Sup. Ct.
BUT, in a civil case, state law governs privilege regarding a claim or defense for which state
law supplies the rule of decision
b. this is an Erie-like rule --> in fed. cts., fed. evidence rules are considered substantive. Thus, in a diversity action, the state
privilege law applies
(1) in a mixed 1332 and 1331 case, there may be a choice of law question
(2) to preserve the issue for appeal, it cannot be waived
c. 3 professional privileges recognized in fed. cts. (usually the only ones):
(1) psychotherapist-patient privilege
(2) clergy-penitent privilege
(3) lawyer-client privlege
d. general elements of privilege: [pgs. 975-76]
(1) the privilege is the client's
only the client OR the professional on the client's behalf may assert OR waive the
privilege
(2) only protects confidential communications made to facilitate professional services
(a) heart-to-heart chats don't qualify
(b) stmts. made to the professional while acting in a non-professional capacity don't qualify
(3) only protects confidential communications
client has to have intended the stmts. to be AND stay confidential
(4) only protects confidential communications
the communication is what's protected, NOT the facts that were
communicated
e. to invoke a privilege
(1) there must be some kind of recognized relationship bt/w D and W (e.g., husband-wife, clergy-penitent)
(a) there is usually some policy reason cts. have recognized this as a privileged relationship (e.g., value on marital
trust/harmony for H-W privilege, value on spiritual health and expression for clergy-penitent privilege)
(2) if the stmts. fall w/in the relationship, there must be intent to keep it confidential
(a) this means if priest just sees a crime (rather than learning about it in a confession), he can still testify
(3) just covers communications, doesnt cover underlying facts
(a) IE, facts are not immune from trials, they just cant come from these sessions
IE, friend can say that BT was depressed, but psyche cant.
f. W's privileges vs. D's need for evidence
(1) parties can make a const. argument to pierce a privilege
(a) D has the right to put on a full and fair defense, and this evidence is necessary to the defense AND the
evidence is reliable
(b) weigh theses against the policy for the privilege

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(2) There is a balancing test in criminal cases, not civil cases

(3) 5th amend trumps other constitutional rights that would bring in the evidence
(a) Way around the 5th amend: Govt/prosecution can give a W immunity
2. PRIVILEGE EXCEPTIONS
a. waiver = if you voluntarily disclose privileged information, then it is waived
(1) MUST be disclosure of the communications, NOT the facts (i.e., just b/c A told B, doesnt mean that the lawyer
has to talk)
(a) BUT if A tells B, I talked to my lawyer, and she said, now the communication was waived and lawyer could
testify
(b) if privilege is revealed, it acts as a waiver if breached by the one holding the privilege
(c) this is almost the only way you can show waiver
(2) waiver usually has to be intentional disclosure --> testifying W can't just have accidentally overheard the disclosure
b. dangerous patient exception
(1) there must be an imminent threat of harm or death
(2) this exists in most jx.s
c. crime/fraud exception
(1) if privilege is used to commit or cover up fraud, it is NOT covered, regardless of whether the lawyer knows about
the fraud
(2) communication must be in furtherance of the crime/fraud (not just any conversation about the fraud/crime)
you
can't use the privilege to make your atty a co-conspirator, but you can ask them for advice once you've already
committed a crime
3. PSYCHOTHERAPIST PRIVILEGE
a. this privilege exists in all the states
(1) this was one of the reasons that the Sup. Ct. decided to recognize the privilege in Jaffee
(2) this privilege is not explicitly recognized in the FRE, only recognized by cts. and fed. common law
(3) NOTE: there's no balancing test for use of this privilege, at least not in fed. ct. (suggested by the cir. ct. in Jaffee,
but rejected by the Sup. Ct.) --> it's a blanket privilege, meaning there's no 403 analysis
b. Jaffee v. Redmond (1996) --> Vic was killed by a PO; Vics family wants access to the PO's (D's) meetings w/social worker
after the shooting; trial ct. ordered sanctions of adverse inference for failure to disclose info obtained by social worker
using psychotherapy
(1) Sup. Ct. uses 501 to create a new privilege for psychotherapist & patients, rules that the records requested here
are privileged
scope of privilege = covers confidential communications b/tw a patient and a psychotherapist
or licensed social worker (also the notes taken during those sessions)
(2) why did the Ct. recognize this privilege even though they don't recognize a doc-patient privilege?
(a) Sup. Ct. says psychotherapists & social workers can't do their jobs if their patients don't feel like they can tell
them the full truth, whereas regular docs can still do their jobs w/o first gaining the patient's trust (i.e., it's easy
to see a patient's broken leg, not so much their broken mind)
(b) per T-burg: doesn't fully buy this b/c people need to be honest w/regular doc's too, yet they still lie to them
if they don't feel trusting
(3) dissent: this privilege could prevent finding the truth and lead to injustice. Further, argued that the Sup. Ct. should
have addressed whether or not there is a clear need for the privilege, and whether it is appropriate to address the
parameters of that privilege in common-law
(a) Scalia says: even if there should be some kind of privilege in therapist-patient communications, that wasn't
actually the set-up in this case so why does the majority spend so much time talking about that?
also
doesn't think that many people would be deterred from seeking mental health if we didn't have this privilege
4. REPORTER-SOURCE PRIVILEGE
a. generally: there's no such privilege recognized in fed. cts.
b. In re: Grand Jury Subpoena, Judith Miller (2006) --> reporter refused to give up her sources re: a top secret CIA leak
(Valerie Plame) when ordered to do so by a grand jury
(1) Sup. Ct. held that reporters do NOT have a 1st Amend. privilege herethey can be compelled to reveal sources
in fed. cts.
the Sup. Ct. had heard a very similar case before (Branzburg) and held that there was no 1st Amend.
privilege, so the cir. ct. didn't want to depart from precedent
(2) what about a common law privilege? --> either there is no privilege, OR to the extent that there may be a privilege,
this particular journalist doesn't have it in this situation
(a) the judges disagreed on this
I. Sentelle: NO, Sup. Ct. foreclosed that possibility in Branzburg
A. policy-related problems:
1. if we acknowledge this privilege, who should should be covered by it (i.e., who is considered a
"journalist")?

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2. acknowledging this could create a "license to leak" (esp. if our definition of "journalist" is lax) -->
people/gov't empEE's could say they were leaking to a "journalist," even if it was just a random
person/friend
II. Henderson: waffling, said question was beyond the scope of this case and shouldn't be answered here
A. also proposed a kind of balancing test
1. nature/severity of the gov't infraction < VS. > need for public/gov't security
2. it's not as necessary to inform the public about very minor gov't infractions, so these kind of
stories should have less protection for sources
3. if the matter is critical to gov't security, it's less likely that a ct. would allow a journalist privilege
b/c there are compelling reasons to make journalist produce their source
III. Tatel: YES, with balancing test (same test as above)
A. this lady is obviously a real reporter (she writes for the NY Times!)
B. this privilege would encourage gov't accountability
C. however, using the proposed balancing test, this lady would probably still lose --> the info she was
protecting involved a relatively minor gov't infraction
c. reporter privilege in MO
(1) Judge Stith opinion in Classic 3 (Mo. ct. of app., 1997) is the guiding principle in MO
(a) we should only squeeze a reporter if we really need to
(b) how likely are there to be problems for the leaker if the info is revealed
(c) is the info crucial to the P's case
(d) has the P made a prima facie showing of defamation
(2) trial ct. should only use this test if the journalist invokes the privilege b/c she told her source she wouldn't tell
5. CLERGY-PENITENT PRIVILEGE
a. generally: clergy-penitent privilege applies to anyone seeking religious counsel (not just confession to a Roman Catholic
priest)
(1) penitent-confessor doesn't have to be of the same denomination or religion as the clergy member, but they do
have to think they're making a confidential, spiritual confession/communication
(2) some unusual religions may or may not be covered --> also probably not atheists having heart-to-hearts
(a) judge should ask: did the Dec consider the stmts. privileged as a result of the religious relationship when he
made them?
(3) judge should ask: how does that particular religion consider the stmts. (e.g., would the Catholic church consider
them part of a formal confession or just an informal heart-to-heart chat w/a priest?) --> [see pg. 961]
(4) ***if 3d party is there doing work for you, that information is not lost
(5) ***care a little about the professional associations thoughts on what is and is not privileged because it is tied to
their professional duties
b. Morales v. Portuondo (S.D.N.Y. 2001) --> wrong man was sent to jail; Co-D tells a lot of people, including a priest (but not
in confession), how that wrong man didnt do it, that he (the Co-D) did; he dies later. Priest wants to testify b/c,
according to cannon law, Co-D didnt actually confess to him, so the priest is allowed to testify about Co-D's stmts.
(1) hearsay problems:
(a) even w/o privilege, priest's stmts. are hearsay
(b) no hearsay exception available
(2) Judge Chin allows priest's testimony in on a Chambers-style argument
(a) Chin used a combination of NY's residual exception and their compulsory process (i.e., Chambers-like) rule
(b) evidence is VERY necessary for D (the wrong D in jail)
(c) it is reliable in that he told multiple people (i.e., the stmts. he made to the other non-clergy people were
against penal interest)
(d) pretty limited cost to allowing the testimony, esp. b/c the Co-D is dead
(e) so, the priest's testimony comes in
(3) attempt to argue hearsay exception --> residual exception (i.e., the "near miss" exception of 807)
(a) why would he lie to 4 people about a murder for which he hadnt been charged?
(b) 3-part Chambers-like analysis for deciding to admit clergy evidence:
I. is the evidence really necessary?
II. is it in the best interest of justice to admit this? (how unfair would it be to the Dec to admit it)
III. is it reliable? (has trustworthiness guarantees)
c. privilege overrule Morales or Chambers
(1) privilege can be undermined if the defendant can prove that the evidence is: probative, reliable, & necessity to
overwhelm the need for the privilege
(2) argument against the establishment of a static privilege rule is that we want predictability

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6. MARITAL PRIVILEGES
a. marital privileges chart:
in what context does the
privilege apply? (civil, criminal,
or both)
who may assert privilege?
does privilege survive the
marriage?
what type of comm. does it
apply to?

does privilege apply to Tom

Hanks' phone call? (when he
mistakenly calls Wife instead
of Mistress)
does privilege apply to
bedroom convo? (b/tw him &
Wife when he got home)
rationales for the privilege?

spousal testimonial privilege

some states, both; most states &
fed., only criminal cases (& only if
it's the prosecutor that's seeking
spouse's test.); if D is calling a W, no
privilege
federal: Trammel (only W-spouse),
Hawkins (either, but overruled now);
states: it varies
No

marriage communications privilege

both civil & criminal

all, even if heard by others (also

observations), also things before
marriage; proposed 505 would've
restricted to events during marriage
(to prevent suppression by marriage)
yes; spousal privilege doesn't care
about the substance of the testimony

only comms. intended to be

confidential, or only during marriage's
time; BUT, presumption = all marital
comms. are intended to be
confidential
depends: Wife's stmts. are prob.
privileged b/c she knew it was him;
BUT, he thought he was talking to
Mistress, so prob. no privilege
yes, both understood they were
talking to each other

yes
protect marital harmony; can
see it in contours (esp. important in
crim. cases; can only be claimed by
W-spouse b/c best judge of whether
there is marriage to preserve;
doesn't survive marriage)

majority & federal: either spouse

may assert privilege
yes

encourage free comm. b/tw

spouses; can see it in contours
(doesn't matter what kind of case,
always care about confidentiality; both
spouses have interest; survives
marriage b/c of potential chill; only
applies to confidential comms.)

b. the spousal testimonial privilege

(1) generally: the privilege vests in the spouse who is NOT on trial, whether it's the H or W (Trammel)
(a) state exception for domestic violence (under crime/fraud exception, see below)
(b) privilege only applies in criminal cases (majority rule)
(c) privilege does not cover acts or stmts. said in front of a 3rd person
I. NOTE: this does not cover spousal testimony about acts they witnessed or stmts. they unintentionally
overheard, only things the other spouse said/did with the intent for it to remain confidential < OR >
Protects all kinds of communication or action even if others are present --> WHICH IS TRUE FOR THIS
PRIVILEGE??? NEED TO ASK OR LOOK IT UP
(d) privilege does not survive the marriage --> spouses can choose or be forced to talk about spousal
communications upon divorce or death of spouse
(2) policy rationales FOR the privilege:
(a) it's been around for a long time (privilege comes from old English common law)
(b) it used to be that interested W could not testify
(c) also, the least popular idea is that the wife and H are the same person
(d) more plausible rationale = the privilege fosters harmony and the sanctity of marriage; we dont want to pit
spouses against each other
(3) arguments AGAINST the privilege:
(a) it's too broad goes further than just covering spousal communication
(b) marital unity argument is antiquated --> if spouse is willing to testify against the other, then their relationship
has already been degraded
(c) allows married couple to turn house into a den of thieves --> allows a spouse an automatic and legally
protected accomplice
(4) Trammel v. US (1980) --> couple is running a heroin smuggling ring, and wife is going to flip on the husband (D); D
wants to prevent the W from adversely testifying against him at a criminal trial
(a) govt wanted to get rid of old Hawkins rule, and 501 says that ct. can det privileges
I. old Hawkins rule (fed. Sup. Ct.):
A. the defendant spouse gets to decide whether the other spouse testifies

65

B. spouses are not allowed to testify at each others trial --> even an interested/helpful spouse could not
testify
C. related to rule that people could not testify at own trial and marriage creates one person
II. modern state ct. rule:
A. Hs and Wives are allowed to testify on each others behalf but they can't be compelled to testify against
each other
B. privilege belonged to both spouses and either could prevent the other spouse from testifying at all
III. argument against the change in law: too much pressure on W to testify
(b) Sup. Ct. split the baby > it is still there, but it vests in the witness spouse, not the D spouse
I. if the spouse chooses to testify, they cannot testify as to private marital communications
II. here, if W wanted to testify, there probably wasn't a marriage worth saving
(5) re: crime/fraud exception:
(a) some cts. dont recognize the privilege if the spouses are co-conspirators and/or co-Ds (minority rule) --> if
one spouse commits a crime against another spouse, the property of the other spouse, or the children of the
other spouse, then the spousal privilege must yield to allow testimony
I. BUT, majority rule = would still allow the privilege to survive the crime
(b) also, the privilege does NOT cover domestic abuse (against spouse or kids)
RSMo 546.260 = no
exception for spouse-on-spouse crimes in MO, but there is an exception for spouse-on-kids crimes --> MO is
in the minority of states here
(6) Warren Moon Case [pg. 1050]
(a) law attempts to force victims of domestic abuse to testify against the other spouse
(b) the law forces and intrudes upon the family relationship in that it destroys privilege
c. the marital confidences privilege
(1) generally: protects the communications b/tw an H and W
(a) privilege survives marriage
(b) only covers communications that are meant to be confidential
(c) in majority of jx.s, either spouse can assert the privilege
(d) usually applies to civil and criminal cases
(2) US v. Rakes (1st Cir. 1998) --> case involves Whitey Bulger (infamous mob boss). D opened a liquor store in
Boston; govt believes Bulger threatened to kill D unless he hired mob bosss people and paid the mob for
"protection"; D ended up complying; D had talked about this extortion to his then-wife; govt wants to charge D
with perjury, and wants Ds ex-wife to testify
(a) D refused to testify b/c he didn't want to get murdered --> tried to invoke spousal communications privilege
I. fact that he was divorced didn't matter, the privilege survives the marriage
II. govt argues waiver based on crime/fraud exception because they are part of the extortion (by stopping
wife from calling cops). Ct rejects this argument
(b) govt could also argue that since D told a 3d party about it, it was no longer privileged
this doesnt really
work unless D told 3d party that he told his wife stuff
(c) govts weakest argument = finances arent normally confidential
we all know that is just not true
(d) in the end, the privilege survivesct. held that fraud/extortion or disclosure to third parties can waive the
privilege
difficult decision since the D was obviously in fear for his life from dealings w/the mob
7. PARENT-CHILD or SIBLING-SIBLING PRIVILEGE
a. generally: there's no such privilege
b. In re Grand Jury Proceedings (1997)
(1) this is actually a consolidation of 2 cases
(a) Case 1: Ex-FBI dad refuses to testify against son
(b) Case 2: Daughter doesnt want to testify against dad in kidnapping case
(2) majority: 3d Cir. finds there is no privilege here --> they use 501 reason and experience
(a) Experience: only 4 states have it, no state SC have adopted it, and no federal court has adopted. It is NOT on
the list of suggested ones in advisory committee, and no compelling confidentiality/policy reason. There will
not the same type of injury to the parent/child relationship if forced to testigy
(3) dissent: sees these as 2 totally different cases
(a) Argues against a blanket parent-child privilege
I. parent and children should be treated different
II. Kids should be able to speak freely with their parents (don't want to chill speech b/tw children and parents)
III. this is a less compelling argument
(b) Argues for a very limited parent-child privilege
I. only use it when a parent is subpoena to testify against a child
II. If parent has to testify against child and expose child to criminal or other liability, the relationship may be
strained

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(c) Argues that the government should not be involved in making parents testify against their child
XII. MO DISTINCTIONS IN EVIDENCE LAW
A. in MO, we just refer to RSMo or case law, not FRE
B. admission of biz records
1. special procedure allowing biz records --> really an exception, because FRE has the same procedure
a. at one point, parties had to have custodian swear to the biz rec to get around hearsay objection
b. in reality, it was too difficult to get W to swear to biz rec and parties would just stipulate it
2. must follow FRE 902 (11)-(12) (re: authenticity) --> similar to FRE 902(11)-(12)
C. value of medical treatment
1. RSMo 490.715 = value of medical treatment
2. statute creates a rebuttable presumption that the value of medical treatment is the amount needed to satisfy the financial
obligation to the health care provider (i.e., value = actual amount paid)
a. gives P's less money than the actual bill since the health insurer always pays less because it is a frequent player
3. however, MO Sup. Ct. (2010) has allowed a doctor to testify that the original bill is accurate and therefore the bill amount
can be told to the jury
a. basically undermines the statute, allows P's to recover more $$
4. there was a dispute over the meaning of RSMO 490.715 regarding the value of medical treatment.
There was a dispute over whether Ps should be able to recover emotional damages.
Statute creates rebuttable assumption that amount paid was the valuethis would lower the amount of money P can recover.
Mo SC held it was error for tri ct to prevent jury from hearing about amount build. Death v. Teasley
D. rape shield law & W impeachment by prior conviction
1. Mo. Rape Shield Statute is analogous to FRE 412
Mo.- Applies only to criminal prosecutions
FRE 412- Applies to civil cases as well as criminal
2. serves to limit the impeachment you can do to W
a. not as many conditions on how you can and can't impeach a W --> evidence of any prior convictions may come in
3. FRE 609 limits c/l, so that now less prior convictions come in.
4. MO doesnt have a 10 year limitation or severity of offense
a. So, more convictions come in in MO than fed cts.
5. Mo Rape Shield only applies in criminal cts, not civil. MO shield is less robust because FRE also applies in civil cts.
a. BUT Mo has a 404 --> try to keep prior bad acts out of testimony

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