Tracy Lemke

EVIDENCE BUSS (WINTER 2002)

RELEVANCE & GENERAL EXCEPTIONS............................................................................................ 2
1. Logical Relevancy (Rules 401, 402, 104) ....................................................................................... 2
2. Judicial Notice (Rule 201) .............................................................................................................. 3
3. Pragmatic Relevance (Rule 403) .................................................................................................... 4
LIMITING INSTRUCTIONS & COMPLETENESS ................................................................................ 6
1. Limited Admissibility (Rule 105) ................................................................................................... 6
2. Completeness Providing Context (Rule 106) .............................................................................. 6
CHARACTER & HABIT EVIDENCE ...................................................................................................... 7
1. Character Evidence (Rules 404, 405, 412-415) .............................................................................. 7
2. Habit Evidence (Rule 406)............................................................................................................ 13
POLICY-BASED EXCLUSIONS ............................................................................................................ 16
1. Subsequent Remedial Measures (Rule 407) ................................................................................. 16
2. Settlement Negotiations (Rules 408, 410) .................................................................................... 17
3. Proof of Payment of Medical Expenses (Rule 409)...................................................................... 18
4. Proof of Insurance Coverage (Rule 411) ...................................................................................... 19
WITNESSES............................................................................................................................................. 20
1. Competency of Witnesses (Rules 601-603, 610) .......................................................................... 20
2. Presenting Evidence (Rules 611, 612) .......................................................................................... 23
3. Impeachment (Rules 607-609, 613) .............................................................................................. 25
HEARSAY................................................................................................................................................ 39
1. Hearsay What Is It? (Rule 801) ................................................................................................. 39
2. Hearsay Admissibility & Exemptions (Rules 801, 802) ............................................................ 43
3. Hearsay Exceptions (Availability of Declarant Immaterial) (Rule 803) ...................................... 51
4. Hearsay Exceptions (Declarant Unavailable) (Rule 804) ............................................................. 58
5. Hearsay Residual (Catchall) Exception (Rule 807) ................................................................... 64
6. Hearsay & The Constitution ......................................................................................................... 67
PRIVILEGES............................................................................................................................................ 70
1. Introduction (Rule 501)................................................................................................................. 70
2. Attorney-Client Privilege .............................................................................................................. 71
3. Psychotherapist-Patient Privilege ................................................................................................. 75
4. Spousal Privileges ......................................................................................................................... 75
OPINION AND EXPERT TESTIMONY ................................................................................................ 80
1. Lay Opinion Testimony (Rule 701) .............................................................................................. 80
2. Expert Witnesses (Rules 702-706)................................................................................................ 81
3. Scientific Evidence ....................................................................................................................... 86
4. The Relevance of Probabilistic Analysis ...................................................................................... 89
BURDENS & PRESUMPTIONS ............................................................................................................. 91
1. Burdens and Presumptions in Civil Cases (Rules 301, 302) ........................................................ 91
AUTHENTICATION ............................................................................................................................... 95
1. Introduction (Rule 901)................................................................................................................. 95
2. Self-Authenticating Exhibits (Rule 902) ...................................................................................... 99
BEST EVIDENCE RULE ...................................................................................................................... 102
1. The Best Evidence Doctrine (Rules 1001-1008) ..................................................................... 102

Tracy Lemke
RELEVANCE & GENERAL EXCEPTIONS
1. Logical Relevancy (Rules 401, 402, 104)
a. Definition and Basic Rules:
i. FRE 401 Relevant evidence is evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.
1. Old Chief v. U.S. (1997) The SC stated that the specifics of the s prior
conviction were a step in the evidentiary route to the ultimate fact, serving to
place within a particular sub-class of offenders prosecutable under 922.
The prior convictions evidentiary relevance under FRE 401 is not affected by
the availability of alternative proofs of the element to which it went. The
prosecution is entitled to prove its cause by evidence of its own choice, to
tell its own story. Further, the jury needs the evidence in all its particularity;
otherwise, the jury may penalize the party who disappoints them.
[Nevertheless, the SC went on to exclude the evidence on FRE 403 grounds
due to unfair prejudice.]
2. Questions to Ask:
a. Is it justified to connect the evidentiary fact (EF) to the fact of
consequence (FOC)?
b. How strong is the connection?
ii. FRE 402 All relevant evidence is admissible, except as provided. Only relevant
evidence is admissible.
b. Direct and Circumstantial Evidence:
i. Direct evidence is evidence which does not depend on any inference for its
relevancy other than the credibility of the witness through whom the evidence is
presented to the court
ii. Circumstantial evidence depends for its relevancy not only upon the credibility of a
witness but also upon an inference to be drawn from the evidence.
iii. Problems of logical relevancy occur only with regard to circumstantial evidence.
c. Examples:
i. Flight Evidence of efforts to avoid capture is generally admissible. Allen v. U.S.
(1896).
1. BUT evidence of flight does not create a presumption of guilt or suffice
for conviction. Hickory v. U.S. (1896).
2. While flight bears generally on guilt, it cannot be taken as proof of specific
elements in the alleged crime. U.S. v. Owens (5th Cir. 1972).
3. Failure to be found in usual haunts can be viewed as flight. U.S. v. Sims
(9th Cir. 1980).
a. BUT it may only show that the suspect left the environs after the
crime. U.S. v. Beahm (4th Cir. 1981).
i. BUT even so, the inference of flight might be persuasive if
other factors are present. U.S. v. Martinez (10th Cir. 1982).
4. Inferences of flight become weaker as lapsed time between the crime and the
alleged flight increases. U.S. v. Jackson (7th Cir. 1978).
ii. Similar kinds of proof include evidence that the accused:
1. Employed false ID or aliases.
2. Destroyed or concealed evidence (spoliation).
3. Fabricated evidence or suborned perjury.
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4. Killed, threatened, or otherwise impeded witnesses for the prosecution.
5. Sought to escape detention.
6. Attempted suicide.
7. Sought to bribe public officials.
d. Questions of Admissibility:
i. FRE 104(a) The judge alone decides whether a point, which a proffered item of
evidence concededly tends to establish or refute, is consequential within the
meaning of FRE 401.
1. BUT it is up to the jury to weigh the evidence, as FRE 104(e) implicitly
recognizes.
e. Conditional Relevancy:
i. FRE 104(b) When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of the condition.
1. The judge performs a screening function: when different answers are
reasonable, the jury decides.
ii. Examples:
1. Experiments (re-creations) The offering party must show a
substantial similarity of conditions between the experiment and the event
or situation being examined. Four Corners Helicopters v. Turbomeca (10th
Cir. 1992).
a. BUT results of an experiment that is only somewhat similar to the
actual events or situation could be excluded under FRE 403 if
differences mean the evidence would confuse or mislead. However,
note that the burden here is shifted to the adverse party.
2. U.S. v. 478.34 Acres of Land (6th Cir. 1978) Error to exclude brokers
testimony, for FRE 104(b) requires jury to decide whether potential for
recreational use is shown.
iii. Conjunction When the fortunes of a litigant depend upon acceptance of the
testimony by two separate witnesses: a jury will consider the conjunction of the two
accounts in deciding the issue.
2. Judicial Notice (Rule 201)
a. Adjudicative Facts:
i. Judicial notice may be taken of certain facts material to the case so as to dispense
with the need for the formal presentation of evidence.
ii. FRE 201(b) A judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot be questioned.
iii. FRE 201(c) A court may take judicial notice, whether requested or not.
iv. FRE 201(d) A court must take judicial notice if requested by a party and supplied
with the necessary information.
v. FRE 201(e) A party is entitled upon timely request to an opportunity to be heard
with regard to the taking of judicial notice.
vi. FRE 201(f) Judicial notice may be taken at any stage of the proceeding.
vii. FRE 201(g) Judicially noted facts are indisputable in civil cases. In criminal cases,
the jury is to be instructed that it may, but is not required to, accept as conclusive any
fact judicially noticed.
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3. Pragmatic Relevance (Rule 403)
a. Basic Rule:
i. FRE 403 Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
1. Party opposing admission bears the burden.
b. Examples:
i. State v. Chapple (Ariz. 1983) Gruesome photographs had little probative value on
the issues being tried since the was disputing his identification, not issues related to
the murder itself. Therefore, admission of the photos was an abuse of discretion.
1. Gruesome Photographs Courts often admit photographs of the victim in
homicide cases. s often offer to stipulate to the appearance of the scene and
cause of death, but prosecutors have a list of points on which such
photographs bear: to establish cause of death, to show position of the body,
to show nature and relationship of wounds, to prove viciousness of attack, etc.
a. Color slides are sometimes allowed, magnifying the image of violent
death. Goffer v. State (Ala. App. 1983).
b. However, sometimes courts exclude gruesome photographs under
FRE 403 when the probative worth is minimal and inflammatory
impact is great. The chance for exclusion improves when the
numbing impact of such pictures results from changed conditions,
i.e., body decomposition, so that they are misleading under FRE 403
as well as prejudicial. People v. Coleman (Ill. App. 1983).
ii. Old Chief v. U.S. (1997) The SC stated that the specifics of the s prior
conviction were a step in the evidentiary route to the ultimate fact, serving to place
within a particular sub-class of offenders prosecutable under 922. Despite the s
offer to stipulate, the prosecution is entitled to prove its cause by evidence of its own
choice, to tell its own story. However, this practice has virtually no application when
the point at issue is a s legal status, dependent on some judgment rendered wholly
independently of the concrete events of later criminal behavior. Thus, the risk of
unfair prejudice substantially outweighed the discounted probative value of the record
of conviction.
iii. As seen in both Chapple and Old Chief, stipulation offered by the defense is not
enough by itself to require exclusion of evidence.
1. BUT a proffered stipulation clearly means there is less need for the evidence,
so the risk of unfair prejudice weighs more heavily in the FRE 403 balancing.
2. Prior Criminal Acts Contrary to the holding in Old Chief, prior criminal
acts are often relevant to the case: they may shed light on points such as
motive ( committed robbery, so needed to steal car) or intent ( often sold
cocaine, so this possession probably intended for sale) under FRE 404.
c. General Ideas:
i. Confers broad discretion on the trial judge, but the rule is cast in language favoring
admissibility.
1. Always ask for exclusion under FRE 403.
2. Appellate courts are very hesitant to overturn these types of rulings.
ii. Remember that while FRE 403 is so often about prejudice, there are other grounds
to invoke the rule to seek exclusion.
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d. Balancing Test Under FRE 403:
i. Probative Value vs.
1. Strength
a. How strong is the connecting generalization? How strong is the
inference between the EF and the FOC?
2. Need
a. Other evidence?
b. How central/important to the case?
ii. Prejudice
1. Wrong weight?
2. Wrong use?

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LIMITING INSTRUCTIONS & COMPLETENESS
1. Limited Admissibility (Rule 105)
a. Basic Rule:
i. FRE 105 When evidence which is admissible only as to one party or for one
purpose is admitted, the court should restrict the evidence to its proper scope and
instruct the jury accordingly.
b. Limiting Instructions:
i. Courts often give limiting instructions to prevent misuse of evidence on other
issues or as against other parties.
c. Policy Arguments:
i. Practical necessity dictates that evidence be admitted even though it may have
unwanted spillover effects: Little proof would be admissible if its relevance or
impact in the case had to match exactly its competency.
ii. Our theory of trial relies on the ability of a jury to follow instructions. Unless we
proceed on the basis that the jury will do so, the jury system makes little sense.
iii. Buss: Limiting instructions on facts are likely to annoy the jury and are usually
unnecessary.
d. Alternative in Criminal Trials:
i. If clear limiting instructions are not good enough in a case with multiple parties, the
prosecutor can sever and proceed separately against the various s.
2. Completeness Providing Context (Rule 106)
a. Basic Rule:
i. FRE 106 When part of a writing or recorded statement is introduced, an adverse
party may require the immediate admission of any other part of the writing which
in fairness ought to be considered.
b. Policy Argument:
i. Counters problems which can occur when a proponent proffers evidence which is a
small piece of a larger picture and thus distorts meaning.
c. General Idea:
i. Beyond the Rule This rule of completeness could apply to statements that
have not been written or recorded and to other sorts of evidence as well, and trial
courts have authority enough under Rules 401 through 403 and 611 to apply the same
principle to such other proof.
d. Application:
i. FRE 106 invites the adverse party to require the proponent to offer another
writing (or other part of a writing) at the same time as the writing (or part) being
offered. Although framed as an interruption rule, FRE 106 clearly authorizes
adverse parties to answer an incomplete presentation later in trial, thus also serving
as a rebuttal rule.
ii. Some courts take the view that FRE 106 affects only the order or sequence of proof.
The better view, however, is that FRE 106 can sometimes trump hearsay and
other objections when necessary to provide context.

Tracy Lemke
CHARACTER & HABIT EVIDENCE
1. Character Evidence (Rules 404, 405, 412-415)
a. Three Questions to Ask:
i. What is the purpose?
1. Comes in if it is an element of a claim or defense (FRE 405(b)).
2. Does not come in if it is being used to form a link in the chain between the
evidence and the action cant be used to prove conduct (FRE 404(a)).
ii. Is it admissible (FRE 404)?
iii. By what method reputation, opinion, or specific acts (FRE 405)?
b. General Ideas:
i. Rare that character comes in as an element of the case.
ii. Generally offered to prove some sort of character trait in order to then prove that
some action followed naturally from that character trait propensity use.
1. However, this is generally prohibited under FRE 404(a).
c. Admissibility of Character Evidence When Character Is Not in Issue:
i. General Rule:
1. FRE 404(a) Evidence of a person's character or a trait of his character is
not admissible for the purpose of proving that he acted in conformity
therewith on a particular occasion.
ii. Exceptions:
1. FRE 404(a)(1): Character of Accused The accused in a criminal case
may offer evidence of a pertinent trait of his character, and the
prosecution may rebut that proof. Also, if evidence of a trait of character
of the alleged victim is admitted under FRE 404(a)(2), evidence of the same
trait of character of the accused may be offered by the prosecution.
a. Pertinent Character Trait In a battery prosecution, court would
likely exclude evidence that is honest but would admit proof that
he is peaceable or nonviolent.
i. BUT in a drug trial, evidence of s reputation for truth and
veracity was not admissible. United States v. Jackson (5th
Cir. 1979).
b. Level of Specificity Evidence should be limited to pertinent traits,
rather than proving character generally.
i. For alleged indecent assault, permitted to prove specific
traits of sexual morality and decency, but not general good
character. State v. Blake (Conn. 1968).
1. BUT general proof that is law abiding seems at
least marginally relevant in all contexts, and courts
seem disposed to admit it. United States v. Diaz (9th
Cir. 1992).
c. Character Alone Enough to Acquit? Compare United States v.
Pujana-Mena (2d Cir. 1991) (implying jury should be told to consider
defense evidence of good character in the context of all the evidence)
with United States v. Hewitt (5th Cir. 1981) (jury should be told that
good character alone may raise a reasonable doubt).
d. Minimal But Sufficient Offering Testimony that witness has
heard nothing ill of the is admissible as character evidence.
Michelson v. United States (1948).
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2. FRE 404(a)(2): Character of Alleged Victim Evidence of a pertinent
character trait of the victim of a crime may be offered by an accused in a
criminal case, and the prosecution may rebut that proof. Also, the
prosecution may offer evidence of a character trait of peacefulness of the
alleged victim of a homicide to rebut any evidence that the victim was the
first aggressor.
a. Second provision is the only situation where the prosecution can be the
first to bring in character evidence only opportunity for the victim to
speak.
3. FRE 404(a)(3): Character of Witness Evidence of the character of a
witness as provided in FRE 607, 608, and 609.
iii. Methods of Proving Character When Character Is Not in Issue:
1. FRE 405(a) Proof may be made by testimony either of reputation or in the
form of an opinion. Inquiry is permitted on cross-examination of character
witnesses with regard to relevant specific instances of conduct.
a. Underlying Requirement Opinion or reputation testimony must be
offered on a good-faith basis combats witness lies.
b. Common Law Tradition At common law, only reputation evidence
was admissible. Thus, even today, reputation evidence has a better
pedigree and is considered stronger than opinion testimony;
reputation is an accumulation of multiple opinions over time.
c. How Well Must a Character Witness Know the or Victim?
Compare United States v. Parker (7th Cir. 1971) (error to exclude
positive testimony as to s reputation among coworkers) with United
States v. Perry (2d Cir. 1981) (excluding testimony by private
investigator hired by s wife)
d. Psychiatric Opinion of s Nonviolence Compare United States v.
MacDonald (4th Cir. 1982) (excluding testimony) with United States
v. Staggs (7th Cir. 1977) (error to exclude testimony).
e. Example:
i. When the accused calls a character witness to testify to his
good character, the prosecutor may cross-examine about
incidents from s past that could not be proved otherwise.
Michelson v. United States (1948) ( thought the net
advantage from opening it up would be with him; however, the
accused is entitled to limiting instructions that the evidence is
to rebut character evidence only).
d. Character Evidence When Character Is in Issue:
i. Specific Instances of Conduct:
1. FRE 405(b) When character or a trait of character is an essential element
of a charge, claim, or defense, proof may also be made of specific instances
of that persons conduct.
a. Self-Defense Claim In a murder trial, where the claimed selfdefense, the court limited the to opinion or reputation evidence
relating to the character of the victim [because the character of the
victim is not an element in the defense of the accused]. State v.
Hutchinson (Wash. 1998).

Tracy Lemke
i. BUT consider when knows that the victim had previously
committed violent acts in similar situations, hence special selfprotective measures were necessary. United States v. Burks
(D.C. Cir. 1972) (violent acts by the victim were admissible,
when known by the , on the question whether the
reasonably feared he was in danger of imminent great bodily
injury).
e. Evidence of Other Crimes, Wrongs or Acts When Character Is Not in Issue:
i. General Rule:
1. FRE 404(b) - Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted in
conformity therewith.
ii. Exception:
1. FRE 404(b) Evidence of other crimes, wrongs, or acts may be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident, provided that
upon request by the accused, the prosecution shall provide reasonable
notice in advance, or during trial on good cause, of the general nature of
such evidence.
iii. Balancing Test:
1. The risk of prejudice to the is manifest, and often the proof is excludable
under FRE 403 even though it is marginally relevant on some point.
a. Four-Part Test Judicial test from Huddleston v. United States
(1988):
i. Decides whether the evidence if offered for a proper purpose
(materiality).
ii. Decides whether it is relevant for that purpose (sufficiency).
iii. Decides whether its probative worth is outweighed by the risk
of unfair prejudice (FRE 403).
iv. Gives a limiting instruction on request.
b. Interesting Question What if the accused had been tried and
acquitted on all the proffered prior bad acts?
i. Argument that, in the earlier cases, a jury had to convict by a
beyond a reasonable doubt standard, but the standard here is
lower; thus, the evidence is not barred.
iv. Proving Intent:
1. Example:
a. Witness may be allowed to testify in the prosecution of a drug dealer
to help establish intent by testifying to past cocaine sales showing
that when he initiates a sale, he intends to complete it. Allows the jury
to infer intent from prior actions.
2. Related Points:
a. While intent is a central mental element in many prosecutions, it is not
the only one that bears on guilt. Evidence of prior crimes often sheds
light on other relevant mental conditions:
i. United States v. Loera (9th Cir. 1991) (on question of malice,
admitting misdemeanor convictions for drunk driving, which
showed that had reason to know about the risk his drinking
and driving posed to others).
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ii. United States v. Ramirez (2d Cir. 1990) ( claimed lack of
knowledge of drugs, and court properly admitted later cocaine
offense to rebut this claim).
iii. United States v. Dornhofer (4th Cir. 1988) (in trial for
possession of child pornography, admitting evidence that had
other similar materials as proof of intent and lack of mistake
or accident).
b. Entrapment Defense When the defense claims that government
action induced a crime the would not otherwise commit, the usual
response by the prosecutor is to offer proof that committed similar
crimes on other occasions. Sorrells v. United States (1932) ( who
raises an entrapment defense cannot complain of an appropriate and
searching inquiry into his own conduct and predisposition as bearing
upon that issue).
v. Proving Identity or Modus Operandi:
1. General Ideas:
a. Can be proved in many different ways, e.g., striking physical
similarities, distinctive or unusual pattern.
i. There can be a cumulative effect where all the pieces fit
together to form a pattern.
2. Policy Argument:
a. We are shrinking the potential pool of suspects by establishing a
specific link between the past acts and the crime at issue.
3. Reverse FRE 404(b) Evidence The argues that offenses by another so
strikingly resemble the charged crime that the proof suggests that the other
must be guilty of the offense charged to the , too. United States v. Stevens
(3d Cir. 1991).
vi. Proving Plan or Design:
1. General Ideas:
a. Very much like intent use.
b. Can show how the pieces fit together, e.g., by showing a suspect kills
off everyone off between himself and his mothers inheritance.
c. Mendez and Imwinkelried, Loyola L.A. L. Rev.: True plan cases
are those where the accused formulates a single, overall grand design
that encompasses both the charged and uncharged offenses where the
design is overarching and all the crimes are integral components or
portions of the same plan so each crime amounts to a step or stage
in executing the plan.
2. Examples:
a. In sexual abuse cases, evidence that also abused the victims sibling
is sometimes offered as evidence of plan or design. People v. Ewoldt
(Cal. 1994).
i. BUT see Government of Virgin Islands v. Pinney (3d Cir.
1992) (in trial for rape of seven-year-old, error to admit
evidence that seven years earlier had raped victims older
sister in same apartment; insufficient temporal connection to
establish common plan).

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b. Proof of sexual misconduct towards others in the extended family may
be admissible to show design or intent to, for example,
opportunistically fondle young girls within the family context. State
v. Wermerskirchen (Minn. 1993).
vii. Proving Other Purposes:
1. Doctrine of Chances Dont have any greater proof from the prior acts that
there is a connection, but when you put them all together, there is some
reason to think there is a connection.
a. Proof of Previous Abuse Typically when child abuse is suspected.
i. Circumstances often indicate that one or another adult-incharge must be the source or must be aware of the childs
condition, and sometimes the nature or extent of the injuries
suggests that they must have been intentionally inflicted.
Estelle v. McGuire (1991).
ii. The term battered child syndrome has come to mean a
string of suspicious injuries, e.g., how likely is it that a child
would have 3 similar injuries within the previous year?
b. Classic Example Wives in the Bath case.
i. The more unlikely the prior accounts, the more the judge is
likely to decide that the evidence can be offered to the jury.
2. Connected Crimes Other crimes may be proved when they are so blended
or connected with the charged offense, e.g., prior bank robbery was
connected to subsequent kidnapping and car theft. United States v. Miller
(7th Cir. 1974).
3. Motive and Opportunity Often in the sense of skill or capacity to do
criminal acts.
a. United States v. Palmer (11th Cir. 1987) (in tax evasion case,
admitting proof that trafficked in drugs as evidence of his motive in
using currency and failing to keep records).
b. United States v. Maravilla (1st Cir. 1990) (as proof that had the
ability to get victim through customs, admitting evidence that
previously he did something similar).
4. Non-Enumerated But Contemplated The Rules list is exemplary rather
than exhaustive.
a. United States v. Scarfo (3d Cir. 1988) (in trial of organized crime
boss for extortion, admitting proof of his involvement in murders to
show tight control over an organization capable of executing those
who incurred his displeasure).
b. United States v. Mendez-Ortiz (6th Cir. 1986) (admitting evidence
that sought to bribe a witness, to show consciousness of guilt).
c. Notably, a who makes the mistake of testifying falsely that he has
never been in trouble before may be contradicted by proof of his
prior crimes.
f. Civil Cases:
i. FRE 404 and 405 do not apply to civil cases character evidence is never
admissible to prove behavior in a particular instance.
1. Exceptions:
a. Courts sometimes admit character evidence in civil cases where the
underlying conduct is criminal in nature. Perrin v. Anderson (10th
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Cir. 1986). Also, some state counterparts to the FRE make limited
provision for character evidence in civil cases.
b. FRE 415 Creates an exception to the ban on character evidence in
civil cases where the claimant seeks damages for sexual assault or
child molestation.
g. Character in Sex Offense Cases (FRE 412-415)
i. General Ideas:
1. These are exceptions to the exceptions of FRE 404(a), specifically
addressing sex offenses.
2. Shows that Congress is always free to directly interfere and add new Rules.
ii. FRE 412: Sexual History of Victim As a general matter, evidence relating to the
sexual history of a sex crime victim stays out.
1. Pre-Balancing By Codification In some sense, this is just a codification of
the basic FRE 403 balancing test.
a. BUT you still can apply FRE 403.
2. Rape Shield Statutes Similar statutes have been enacted in nearly every
state.
3. Policy Arguments:
a. Worried about harm to the victim outside of the forum.
b. Might have a chilling affect on future victim reporting.
4. Policy Question? Consider that it might not be so clear that such evidence
is never relevant in sexual assault cases, e.g., a case in which circumstances
lend at least some credibility to defense claims of consent and in which the
woman was a victim only if she is speaking the truth and is lying.
5. Exceptions:
a. FRE 412(b)(1)(A) When you are directly challenging physical
evidence to account for semen, bruises, etc. coming from different
persons.
b. FRE 412(b)(1)(B) When you are arguing the issue of consent to
show previous consensual acts with the accused.
c. FRE 412(b)(1)(C) When exclusion would violate constitutional
rights.
i. Olden v. Kentucky (1988) (reversible error to refuse to let
ask victim whether she claimed rape in order to preserve
relationship with boyfriend with whom she was cohabiting).
ii. Commonwealth v. Black (Pa. Super. 1985) (unconstitutional
to preclude sexual history evidence of victims incestuous
relationship with brother which may logically demonstrate
victims bias, interest or prejudice against father for
stopping relationship).
iii. Doe v. United States (4th Cir. 1981) ( had been told
beforehand that the victim would say no but mean yes;
court approved evidence of s state of mind as a result of
what he knew of her reputation).
6. FRE 412(b)(2): Civil Cases FRE 412 was extended to civil cases in 1994.
a. FRE 412 is likely to be particularly important in sexual harassment
suits.
7. FRE 412(c): Procedure to Determine Admissibility See the FRE.
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iii. Exceptions that Admit Otherwise Inadmissible Evidence for Propensity Use:
1. FRE 413: Evidence of Similar Crimes in Sexual Assault Cases
a. FRE 413(d)(4): Lustful Disposition Doctrine Specific acts may
be proved by evidence of general sexual disposition. Analog also
exists under FRE 414.
2. FRE 414: Evidence of Similar Crimes in Child Molestation Cases
Similar provisions as found in FRE 413.
3. FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual
Assault or Child Molestation Extends the doctrines of FRE 413 and 414 to
certain civil cases.
4. Background:
a. Resulted as part of a politically charged crime bill.
b. Enacted as examples for states to consider and perhaps adopt as part of
their own Rules.
c. Opposed by the advisory committees of the Federal Judicial
Conference and the Standing Committee of the Judicial Conference.
5. Overcoming FRE 413-415? Some debate exists on whether it is
appropriate to allow for application of FRE 403 at all here, but it does still
apply if you dont, there may be constitutional concerns.
6. Policy Argument:
a. In the area of sex (or sexual aggression), such a disposition or
propensity is peculiarly reliable as a predictor of future behavior.
i. BUT studies do exist which show that recidivism is not higher
among those convicted of sexual assault than among those
convicted of other crimes.
7. Application:
a. Definitional Question Does another offense under FRE 413
require convictions for sexual offenses?
i. Congressional comments indicate that the term offense does
not require a conviction. The question then becomes one of
admissibility under FRE 104(a).
1. Should the jury be excluded during any such inquiry
under FRE 104(c)?
2. If the accused offers evidence that he did not commit
the other offense, should the judge decide this point
under FRE 104(a) by applying the preponderance
standard, or must this question go to the jury under FRE
104(b)?
2. Habit Evidence (Rule 406)
a. Definition:
i. While character is a generalized description of one's disposition, habit describes one's
regular response to a repeated specific situation.
1. Habitual acts may become semi-automatic.
b. Basic Rule:
i. FRE 406 Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence of
eyewitnesses, is relevant to prove that the conduct of the person or organization on
a particular occasion was in conformity with the habit or routine practice.
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d.

e.

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1. Lack of Eyewitness Points to need, which would increase the probative
value of habit evidence, thus permitting an increased likelihood of satisfying
FRE 403 balancing.
General Ideas:
i. Proof of personal habit is freely received by the courts.
1. FRE 406 stands out among the provisions of Article IV in that it sets out a
rule of admissibility rather than of limits.
ii. Judicial Considerations Looking for specificity, regularity and frequency
then, look for a match to the context at hand.
Policy Arguments:
i. In contrast to character evidence which carries moral overtones (more likely to
inspire antipathy or bias from a jury), there is a neutral quality to habit evidence;
thus, habit is simply more probative of conduct (more likely to be predictive).
ii. Harder to prove character evidence FRE 404 and FRE 405 put restrictions on
specific act testimony, while habits are proved by specific, concrete stuff, which
can support an exacting linkage between a habit and an act.
Questions:
i. How many times does a witness need to observe a habit to support habit evidence?
ii. Are the circumstances different between habit evidence and the scenario at hand?
iii. Who decides, judge or jury? The judge.
Application:
i. Negligence Cases Most often applied in civil negligence cases, but occasionally it
appears in criminal cases as well.
1. Seatbelt Use Habitual disregard of warnings to wear seatbelts was
admissible. Sharpe v. Bestop (N.J. 1999).
2. Occasional Drinking and Driving Occasional disregard of warnings not to
drink and drive was not admissible. Sharpe v. Bestop (N.J. 1999).
3. Prior Relations with Clients In sexual misconduct and malpractice suit
against a lawyer, proof that he had prior relations with clients was
excluded. Brett v. Berkowitz (Del. 1998).
4. Prior Physical Abuse In trial of boyfriend of victims mother, evidence that
she abused child, offered to show she was source of his injuries, qualified as
habit. State v. Huerta (Mont. 1997).
5. Driving Habits Testimony admitted when evidence was on decedents
customary driving speed over a period of years along a particular stretch
of road where the accident occurred. Barton v. Plaisted (N.H. 1969).
6. Drinking Habits Prior arrests for public intoxication were not admissible
as proof that was intoxicated on the occasion in question. Reyes v.
Missouri Pacific Ry. (5th Cir. 1979).
a. BUT see Loughan v. Firestone Tire & Rubber Co. (11th Cir. 1985)
(admitted employer testimony that routinely carries a cooler of beer
on his truck, drinks on the job to the point of generating complaints
from customers, and admits to drinking beer at some time during a
normal day).
7. Crosswalk Usage Admissible when specific to a certain street since it
tended to prove her specific response to going to the grocery store.
Charmley v. Lewis (Or. 1986).

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ii. Religious Habits - Religious habits are not admissible as habit evidence because
they are not reflexive and automatic.
1. Policy Arguments:
a. Potential is high for jury prejudice when dealing with religious
issues.
b. Worried about opportunism set up a habit just to cover up future
suspicious activity.
iii. Individuals Business Habits Business deals completed in the past can be
admissible to establish that the present deal is like the others.
iv. Organizational Custom and Practice May be admissible to show an
organizational routine to prove the doing of an act automatic policies when it
comes to organizations and how they deal with certain situations.
1. Questions:
a. When does a policy constitute a practice?
b. Do individuals actually follow the practice?
2. Generally:
a. Courts are very receptive to accepting routine practice evidence.
i. Helps if the proponent can point to processes that ensure that
the practice is regularly followed.
3. Examples:
a. Physician Practices Testimony by doctor about what he told all of
his patients during informed consent conference qualified as habit
and routine. Arthur v. Zearley (Ark. 1999).
i. BUT other patients could testify that he did not give them such
warnings. Arthur v. Zearley (Ark. 1999).
b. Posting Practices Evidence was admissible when author testified
that he dictated and signed the letter, that he saw it in the out box,
and that a clerk in the office periodically collects the contents and
posts letters. Wells Fargo Business v. Ben Kozloff, Inc. (5th Cir.
1983).
c. Presence of Terms in an Agreement Court admitted evidence of
routine practice to reserve a one-half mineral interest in all property
transferred as proof of term in lost deed. Amoco Production Co. v.
United States (10th Cir. 1980).
i. BUT see C.F.W. Construction Co. v. Travelers Insurance
Co. (6th Cir. 1966) (evidence that, whenever endorsement was
required, practice was to submit contract to insurance company
could not prove it was done in this instance).
d. Industry Practice (Standard of Care) Proof of industry practice
may be admissible on the question of standard of care. Avena v.
Clauss & Co. (2d Cir. 1974) (custom of moving bales by inserting
longshoremens hooks under the bands to move packages, admissible
to prove intended use, hence dangerous condition).
e. Industry Practice (Interpretation of Contracts) Custom and
practice evidence was admissible regarding the limits of liability in
ship repair. M/V American Queen v. San Diego Marine
Construction Co. (9th Cir. 1983).

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POLICY-BASED EXCLUSIONS
1. Subsequent Remedial Measures (Rule 407)
a. Basic Rule:
i. FRE 407 When, after an injury or harm allegedly caused by an event, measures are
taken that, if taken previously, would have made the injury or harm less likely to
occur, evidence of the subsequent measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a design defect, or a need for a warning or
instruction. This rule does not require the exclusion of evidence of subsequent
measures when offered for another purpose, such as proving ownership, control, or
feasibility of precautionary measures, if controverted, or impeachment.
1. Proving Feasibility Tuer v. McDonald (Md. App. 1997). The s
husband, who suffered from angina, died while awaiting surgery, after being
taken off Heparin. Because of his death, the hospital changed its presurgery drug protocol for patients with stable angina to continue Heparin
until the patient enters the operating room. The argued that the change in
protocol was admissible to show feasibility and impeach the s testimony
that restarting the drug would be unsafe. The court disagreed and held that the
change in protocol was not admissible to impeach testimony. The doctor
made a judgment call based on his knowledge and collective experience at
the time. After the s death, the doctors reevaluated the relative risks. That
kind of reevaluation is precisely what the exclusionary provision was
designed to encourage. Further, to be admissible as impeachment
evidence, it must directly serve the purpose of casting doubt on the
credibility of the witnesss testimony, not as a mere pretext to establish
culpability.
a. Two Definitions of Feasible:
i. Technologically impossible.
ii. Unsafe after weighing risks and benefits this is the narrower
definition the court selected as reasonable in Tuer.
2. Event Defined Consider a 1988 car accident in a 1984 car. The accident
was caused by a defective steering mechanism, and the automaker corrected
the defect by design change in 1985. Does event in FRE 407 refer to the
making of the car or the accident? Van Gordon v. Portland General
Electric Co. (Or. 1985) (event means accident).
b. Policy Arguments:
i. Want to avoid discouraging efforts to make things better or safer or to effect repairs.
ii. It would be unfair to introduce against a person evidence that he behaved responsibly
after the fact.
c. Relevancy Argument:
i. Efforts to prevent future accidents may not show or even indicate that past practice or
conditions amounted to negligence or fault.
d. Confusion of Issues Argument:
i. It may be impossible to show that changes that follow an accident were made because
of the accident.

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e. State Issues:
i. Many states do not apply the exclusionary standard in product liability cases.
1. Ault v. International Harvester Co. (Cal. 1974) In the products liability
area, the exclusionary rule . . . does not affect the primary conduct of the mass
producer of goods, but serves merely as a shield against potential liability.
a. BUT see Flaminio v. Honda Motor Co. (7th Cir. 1984) (rejecting Ault
and arguing that effects of scale are symmetrical because exposure
for future accidents if the defect is not fixed is offset by exposure for
past accidents if the defect is fixed).
ii. The bulk of modern authority says that Erie does not require federal courts to follow
state practice on subsequent measures, but the matter is still open to debate.
2. Settlement Negotiations (Rules 408, 410)
a. Civil Settlements:
i. Basic Rule:
1. FRE 408 Evidence of proof of civil settlements, offers to settle, and
conduct or statements made during settlement negotiations, when offered
to prove liability for or invalidity of the claim or its amount, is not
admissible. This rule does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the course of
compromise negotiations. This rule also does not require exclusion when
the evidence is offered for another purpose, such as proving bias or
prejudice of a witness, negativing a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution.
ii. General Ideas:
1. Buss: Rule is meant to deal with sophisticated discussions between attorneys
behind closed doors.
a. BUT the more litigation is in our sights, the more we might want to
expand our scope of who is covered under FRE 408.
iii. Policy Argument:
1. The system would grind to a halt if every case filed were tried, yet lawyers
would not be able to risk negotiating if what they said or did in trying to settle
were later provable if the attempt to settle failed.
iv. Relevancy Argument:
1. Payment of a small sum (or willingness to do so) does not tend strongly to
prove liability; likewise, acceptance of a large sum (or willingness to do so)
does not tend strongly to prove that a claim is weak.
v. Examples:
1. Ramada Development Co. v. Rauch (5th Cir. 1981) Contractor hires
Architect to prepare a report identifying possible defects in the construction
and evaluating Owners complaints. Owner offers the report in evidence.
Contractor objects that the report embodies statements made in pursuit of
settlement under FRE 408, but Owner replies that the report is otherwise
discoverable. The Court disagreed with Owner and held that the report
should be excluded.
2. United States v. Peed (4th Cir. 1983) The sought to purchase valuable
dolls through the mail, and proceeded to falsely claim the dolls had been
stolen from the USPS. Suspecting she was lying, postal inspectors arranged
for the seller to record a conversation with the where she indicated that she
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would return the dolls if the seller would drop the charges against her. At
trial, the government offers this incriminating remark. The objects,
claiming that her statement was an attempt to compromise over the sellers
civil claim, but the government contends that it was an effort to obstruct a
criminal investigation or prosecution. The court admitted the statement.
b. Plea Bargaining in Criminal Cases:
i. Basic Rule:
1. FRE 410 Except as otherwise provided in this rule, evidence of the
following is not admissible against the who made the plea or was a
participant in the plea discussions: (1) a plea of guilty which was later
withdrawn; (2) a plea of nolo contendere; (3) any statement made in the
course of any proceedings under Rule 11 of the FRCP regarding either of the
foregoing pleas; or (4) any statement made in the course of plea discussions
with an attorney for the prosecuting authority which do not result in a plea of
guilty or which result in a plea of guilty later withdrawn.
a. Buss: Note that actual entry of guilty pleas are not shielded they
have legal effect in our criminal justice system, so they are probative.
i. This is unlike the civil analog in FRE 408 where a settlement
agreement is inadmissible.
ii. Exceptions:
1. FRE 410 However, such a statement is admissible (1) in any proceeding
wherein another statement made in the course of the same plea or plea
discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it, or (2) in a criminal proceeding for
perjury or false statement if the statement was made by the under oath, on
the record and in the presence of counsel.
iii. Policy Argument:
1. There is a strong preference for plea bargaining as a way of disposing of
criminal cases, and without protection, such bargaining could not occur.
iv. Relevancy Argument:
1. Sometimes what is said during plea bargaining does not tend to prove guilt of
the accused or any weakness in the governments case, although it looks
bad for one side or the other.
v. Point of Debate:
1. Drawing the Line Where do you draw the line between confessions and
plea agreements?
a. There can be a fine line here, so you may want to force the State to
bear the burden and be explicit.
i. BUT see United States v. Brooks (5th Cir. 1982) (post-arrest
statements to agents in effort to work something out for s
girlfriend were not excludeable).
3. Proof of Payment of Medical Expenses (Rule 409)
a. Basic Rule:
i. FRE 409 Evidence of furnishing or offering or promising to pay medical, hospital,
or similar expenses occasioned by an injury is not admissible to prove liability for
the injury.

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4. Proof of Insurance Coverage (Rule 411)
a. Basic Rule:
FRE 411 Evidence that a person was or was not insured against liability is not
admissible upon the issue whether the person acted negligently or otherwise
wrongfully. This rule does not require the exclusion of evidence of insurance against
liability when offered for another purpose, such as proof of agency, ownership, or
control, or bias or prejudice of a witness.

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WITNESSES
1. Competency of Witnesses (Rules 601-603, 610)
a. General Rule of Competency:
i. Basic Rule:
1. FRE 601 Every person is competent to be a witness, except as otherwise
provided in these rules. However, where State law supplies the rule of
decision, the competency of a witness is to be determined in accordance with
State law.
ii. Historical Background:
1. Early common law imposed a number of disabilities that rendered many
potential witnesses incompetent to testify in court:
a. Mental Incapacity those insane or mentally impaired
b. Religious Belief atheists, agnostics, and members of certain sects
were disqualified because an essential component of the oath was the
belief in a deity who would punish false swearing
c. Criminal Conviction persons convicted of felonies or crimen falsi
were disqualified as having demonstrated such disregard for morality
and the laws of society that their testimony could not be trusted
d. Infancy courts focused more on a childs ability to understand the
oath than on their capacities of perception and recollection
e. Parties a party could not be witness for himself or a co-party
f. Spouses of Parties spouses could not testify for or against the other
since it was likely to be biased by interest and affection or since it
might cause marital discord
g. Accomplices accomplice testimony barred if they were parties of
record to the same charge
h. Other Interested Persons any other person having a direct interest
in the litigation
iii. Policy Arguments:
1. There are very few limitations on who we hear from in a trial, unlike the many
limitations on what can be said. This difference is acceptable and desirable
because witness credibility will be assessed by jurors during trial and this will
depend on many different factors in the case.
a. What we are asking of jurors in these two aspects is different:
i. One is the notion of rational, logical thought where we are
worried what they will do and think that jurors wont do better
than judges and lawyers; jurors are more likely to draw
improper inferences.
ii. The other is something that we want to allow jurors to do to
use their gut instincts and make credibility determinations; if
jurors are going to be good at anything, it would be this.
iv. Examples:
1. United States v. Lightly (4th Cir. 1982) The inmate was charged with
stabbing another inmate. The and McDuffie, a fellow inmate, were
investigated, but McDuffie was not indicted because he was found
incompetent to stand trial and criminally insane at the time of the offense.
The attempted to have McDuffie testify that only he, and not the , had
assaulted the victim, but the lower court ruled McDuffie incompetent to
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3.
4.
5.

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testify. However, the appellate court noted that every witness is presumed
competent under FRE 601 unless it can be shown that there was no personal
knowledge, there was no capacity to recall, or the witness does not understand
the duty to testify truthfully. The court then held that since the testimony of
McDuffies physician indicated that McDuffie had a sufficient memory, that
he understood the oath, and that he could communicate what he saw, it was
clearly improper to disqualify McDuffie. His testimony would have
substantially corroborated s testimony (important personal knowledge).
Court-Ordered Psychiatric Examination? The court has the power, and
in an appropriate case the duty, to hold a hearing to determine whether a
witness should not be allowed to testify because insanity has made him
incapable of testifying competently. Unites States v. Gutman (7th Cir.
1984).
a. BUT see United States v. Raineri (7th Cir. 1982) (court must
consider the infringement on a witnesss privacy, the opportunity for
harassment, and the possibility that an examination will hamper law
enforcement by deterring witnesses).
Drug Addict or Alcoholic The fact that a witness is a narcotics user goes
not to his competency, but to his credibility. United States v. Jackson (5th
Cir. 1978).
On Drugs While Testifying The witness was found competent who, while
on the stand, consumed opium taken from a trial exhibit. United States v.
Van Meerbeke (2d Cir. 1976).
Child Witnesses In a trial for first-degree rape of a five-year-old girl, the
trial court did not err in permitting the victim, then six years old, to testify.
She was properly found to be competent once the trial judge was satisfied by
voir dire that the child understood her obligation to tell the truth, and the
difference between truth and falsehood. Any mental and or moral capacity
concerns go to issues of credibility or weight, not competency. Ricketts v.
Delaware (Del. 1985).
a. BUT a number of states do not follow the presumption of
competency approach of FRE 601 and continue to presume the
incompetency of children below a certain age.
i. Buss: States that have set age limits often have set way too
high of an age than is necessary.
b. Some courts overlook competency issues or deliberately override
objections on that ground when out-of-court statements by children are
offered pursuant to a hearsay exception.
i. Many states have created a new hearsay exception for
statements of a child sex crime victim.
c. States are experimenting with procedures in sexual abuse
prosecutions to facilitate testimony of child witnesses and reduce
the trauma of testifying, e.g., use of closed-circuit television or a
videotaped deposition, use of anatomical dolls.
i. BUT see Maryland v. Craig (1990) (a case specific finding
that such a procedure is necessary to protect the welfare of the
child is constitutionally required in order to override the s
right to face his accuser).
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b. Lack of Personal Knowledge:
i. Basic Rule:
1. FRE 602 A witness may not testify to a matter unless the witness has
personal knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the witness own testimony. This rule is subject
to the provisions of Rule 703, relating to opinion testimony by expert
witnesses.
c. Oath or Affirmation:
i. Basic Rule:
1. FRE 603 Before testifying, every witness shall be required to declare that
the witness will testify truthfully, by oath or affirmation administered in a
form calculated to awaken the witness conscience and impress the witness
mind with the duty to do so.
ii. General Ideas:
1. An affirmation differs from an oath by eliminating reference to swearing and
to divine power.
2. The words and ceremony that must be used in administering an oath or
affirmation are not specified.
a. It has been held that neither raising the hand nor using the word
solemn is required.
iii. Policy Argument:
1. Important in that it puts a witness on the perjury hook.
a. BUT this falls short when you apply it to child witnesses.
iv. Examples:
1. United States v. Fowler (5th Cir. 1979) The , a tax protestor, complained
that the trial court erred in refusing to allow him to testify after he refused to
swear or affirm that he would tell the truth or submit to cross-examination.
The court affirmed his convictions and stated that [n]o witness has the
right to testify but on penalty of perjury and subject to crossexamination.
2. Witness Under Subpoena Refuses to Be Sworn Refusal to be sworn is
considered to be contempt of court.
3. Flexibility Should Be Allowed See United States v. Looper (4th Cir. 1969)
(English courts have permitted Chinese to break a saucer, a Mohammedan to
bow before the Koran and touch it to his head and a Parsee to tie a rope
around his waist to qualify them to tell the truth).
4. Warnings About Perjury Penalties Required? See United States v.
Mandujano (1976) (no requirement to warn witness not to commit perjury or
to tell the truth, once he has been sworn).
d. Religious Beliefs or Opinions:
i. Basic Rule:
1. FRE 610 Evidence of the beliefs or opinions of a witness on matters of
religion is not admissible for the purpose of showing that by reason of their
nature the witness credibility is impaired or enhanced.

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2. Presenting Evidence (Rules 611, 612)
a. Mode and Order of Interrogation and Presentation:
i. Basic Rules:
1. FRE 611(a): Control by Court The court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting
evidence so as to (1) make them effective for the ascertainment of truth, (2)
avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
2. FRE 611(b): Scope of Cross-Examination Limited to the subject matter
of the direct examination and matters affecting the credibility of the
witness. The court may, in its discretion, permit inquiry into additional
matters as if on direct examination.
3. FRE 611(c): Leading Questions Leading questions should not be used on
direct except as may be necessary to develop the witness testimony.
Ordinarily leading questions should be permitted on cross. When a party
calls a hostile witness, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions.
a. Policy Argument:
i. Worried that the questioner might be taking the witness
somewhere that he otherwise would not go.
b. Exceptions:
i. When Necessary to Develop Testimony Permitted to lead a
witness who is (1) very young, hence apprehensive,
uncomprehending, or confused, (2) timid, reticent, reluctant, or
frightened, (3) ignorant, uncomprehending, or unresponsive, or
(4) infirm. Where the choice is to run the risks posed by this
form of examination or to do without the knowledge of such
witnesses, the risks become acceptable. United States v.
Nabors (8th Cir. 1985) (rejecting defense objection that
prosecutor improperly led a 12-year-old boy, who hesitated in
repeating naughty word allegedly used by ).
ii. When the Witness is Uncooperative See United States v.
Hicks (11th Cir. 1984) (prosecutor led s girlfriend, who was
identified with an adverse party).
iii. When the Rule Is More Trouble Than It Is Worth For
preliminary matters, leading questions save time. The same is
true of matters that are not contested. Finally, most courts give
short shrift to any objection to leading a witness who has
qualified as an expert witness by virtue of formal professional
training. Such witnesses simply wont be led in matters
within their expertise.
iv. When Memory Seems Exhausted When questioning is
stymied by the inability of the witness to recollect matters at
hand, the lawyer is generally permitted to attempt to refresh
his recollection. Usually that means that the lawyer gently
reminds the witness of something he has said before, perhaps
even in written form as recognized in FRE 612.

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v. Cross-Examination Here the lawyer rather than the witness
is the focus; here the substantive points are largely contained in
the questions themselves. Only in rare instances must the
cross-examiner avoid leading questions, e.g., when the witness
is his own client. Cross-examination is intended to develop the
story as the adverse party hopes the jury will see it, to limit or
confine the impact of the witness, and to impeach the
credibility of the witness.
b. Writing Used to Refresh Memory:
i. Basic Rule:
1. FRE 612 Except as otherwise provided under Title 18, if a witness uses a
writing to refresh memory for the purpose of testifying, either (1) while
testifying, or (2) before testifying, if the court in its discretion determines it is
necessary in the interests of justice, an adverse party is entitled to have the
writing produced at the hearing, to inspect it, to cross-examine the witness
thereon, and to introduce in evidence those portions which relate to the
testimony of the witness. [See FRE 612 itself for what happens when (1)
writing contains matters not related, or (2) if a writing is not produced or
delivered.]
ii. Examples:
1. Present Recollection Revived The wanted to refresh the present
recollection of a police officer witness by showing him a report written by a
fellow officer. The witness had been told by the victim before he died that the
was not the attacker. However, this declaration was recorded in a police
report written by another officer at the scene, not the witness. The trial court
refused to permit the use of the report. The appellate court stated that there
was a difference between Past Recollection Recorded and Present
Recollection Revived. In the latter case, as here, no testimonial competence
is demanded of the record since it serves as a mere stimulus (the Proustian
moment), and the stimulus itself is never evidence. The only source of
evidence is the testimony of the witness himself. Thus, the should have
been entitled to try to refresh the memory of the key police witness. Baker
v. State (Md. App. 1977).
2. Writings Used in Advance According to the rule, the writings should be
turned over to opposing counsel.
a. BUT there can be a work product issue under the FRCP, so the
question then becomes whether using work product to refresh memory
should waive the protection under the FRCP.
i. Usually not; the burden is typically such that work product
does not have to be turned over subject, of course, to judicial
discretion.

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3. Impeachment (Rules 607-609, 613)
a. Questions to Ask When Cross-Examining:
i. What is the purpose of the question?
ii. If to impeach, then through what method?
b. Methods of Impeachment:
i. Nonspecific Impeachment Definite in telling the trier to doubt the witness, but
nonspecific in not showing what testimony to doubt. There are 3 types:
1. Bias and Motivation Showing that the witness has some bias, animus,
motivation, or corruption that might lead him to fabricate or shade his
testimony to help or hurt one of the parties.
a. General Ideas:
i. The FRE do not by their terms deal with impeachment for
bias.
ii. The range of points the attacking party may raise in an attempt
to impeach for bias or influence is wide indeed.
iii. There are few hard-edged rules, and the extent of permissible
cross-examination for bias is very much a matter for the
discretion of the trial judge.
iv. Use of extrinsic evidence is allowed.
v. The court cannot properly cut off all apparently legitimate
attempts to show that a witness is biased, and some subjects
(like plea bargains affecting prosecution witnesses, or fees paid
to experts) are so clearly proper that at least some questions are
always allowed.
vi. The court may impose reasonable limits on efforts to show bias
and cut off questioning when the point has been made.
b. Due Process Rights So important is the defense right to develop
bias on the part of prosecution witnesses that the SC has held that
denying cross-examination on such a point can violate defense
confrontation rights and due process. Olden v. Kentucky (1988).
c. Witness Information The SC has held that the trial judge must
permit to uncover basic identifying facts about government
witnesses, such as name and address, and place of employment.
Smith v. Illinois (1968).
i. BUT see White concurrence in Smith v. Illinois (1968)
(questions which tend to endanger the witness may go beyond
proper cross-examination; but if question is normally
permissible, State or witness must explain reason for not
answering).
d. Prior Statement Used to Show Bias For prior inconsistent
statements (FRE 613(b)), extrinsic evidence is only allowed if the
witness has a chance to explain. Similarly, if a prior statement is
being used to show bias, courts sometimes say or imply that the
witness must also be permitted a chance to explain. United States
v. Hudson (1st Cir. 1992) (applying FRE 613 in rejecting claim that
failed to lay required foundation for extrinsic evidence of statement by
witness showing his bias.)
e. Paid Experts See Collins v. Wayne Corp. (5th Cir. 1980)
(approving cross-examination of expert as to fees earned in other
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g.

h.

i.

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cases; a pattern of compensation suggests possibility that witness
slanted his testimony in those cases so he would be hired to testify in
future cases).
i. BUT see United States v. 412.93 Acres of Land (3d Cir.
1972) (proper to cross-examine expert on per diem fee for
testifying, while disallowing cross as to compensation for
whole project).
Paid Informants United States v. Gray (5th Cir. 1980) (rejecting
claim of prosecutorial misconduct, where one government witness was
paid $37,000, and another got $25,000; while high informant fees
are suspicious, an informants testimony is not excluded unless
there is evidence that he was promised payment contingent upon
conviction).
Witness Protection Program If a witness for the prosecution is in
the Witness Protection Program (making him beholden to the
government to protect his new identity and pay monthly support),
the should be able to bring out this fact. United States v. Partin
(9th Cir. 1979).
Examples where questions were upheld as means of indicating bias:
i. Work as Informer See United States v. Leja (6th Cir.
1977).
ii. Affair See United States v. Moore (D.C. Cir. 1976).
iii. Grocery Bills See United States v. Kerr (6th Cir. 1972).
iv. Homosexual Advance See United States v. Jones (9th Cir.
1985).
v. Arrests See United States v. Garza (5th Cir. 1985).
Examples:
i. Unites States v. Abel (1984) The was indicted for bank
robbery. One of his cohorts, Ehle, agreed to testify against the
. The wanted to proffer the testimony of a Mills who would
testify that Ehle had admitted that he intended to implicate
falsely in order to receive favorable treatment. The prosecutor
in turn disclosed he intended to discredit Mills by calling Ehle
and eliciting that all were members of the Aryan
Brotherhood, a secret prison gang that required secrecy and
perjury on each others behalf. The objected on grounds of
prejudice. The SC held that the evidence was sufficiently
probative of Mills possible bias to warrant admission. A
successful showing of bias would have a tendency to make his
testimony less probable to the jury. The courts have upheld
the use of extrinsic evidence to show bias. The membership
in the Aryan Brotherhood was not offered to convict, but to
impeach. Further, contrary to s belief, the specific type of
organization was relevant to show the source and strength of
bias. Finally, the claims error under FRE 608(b) contending
that the testimony was extrinsic evidence, which is barred
under the rule. However, there is no rule of evidence which
provides that testimony admissible for one purpose and
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Tracy Lemke
inadmissible for another purpose is thereby rendered
inadmissible.
ii. Disclosure of Prosecution Deals The prosecutor must
disclose information about deals and promises of leniency
affecting prosecution witnesses. Giglio v. United States
(1972). See also United States v. Roberts (9th Cir. 1980)
(court should allow defense questions about plea agreements
between government and its witnesses).
1. BUT for mitigation strategy, see United States v. Gaev
(3d Cir. 1994) (on direct, government properly asked
drug conspirator about plea agreement; otherwise, jury
would learn he was involved and might infer that he
had not been punished).
2. Sensory and Mental Capacity Showing a defect in his sensory or mental
capacity (perception or memory) that undercuts his testimony.
a. General Ideas:
i. Attacking party may seek to show that a witness had only a
brief chance to see or hear, or that he labors under defects that
may affect his observation, or the human perceptive processes
work in ways suggesting that his testimony is not so persuasive
as it seems.
ii. May be done on cross, but may also be proved by extrinsic
evidence when the attacking party presents his case.
b. Under the Influence Showing that the witness was under the
influence of drugs or alcohol at the time of the events or even during
trial. United States v. Hickey (1st Cir. 1979).
c. Mental Impairment Cross-examination on mental affliction or
illness is proper, including questions about treatment or stays in mental
institutions. United States v. Lindstrom (11th Cir. 1983).
d. Medical Records Occasionally courts order production of medical
records. United States v. Honneus (1st Cir. 1974).
e. Psychiatric Testimony Courts sometimes admit psychiatric
testimony when it bears on capacity to observe or report. United
States v. Partin (5th Cir. 1974).
f. Court-Ordered Mental Examination The trial judge has the power
and sometimes duty to hold a hearing to determine whether a witness
should be permitted to testify only if he agrees to psychiatric
examination. United States v. Gutman (7th Cir. 1984).
i. BUT see United States v. Martino (5th Cir. 1981) (courtappointed psychiatrist examined key government witness,
finding him competent to testify; no error to refuse defense
request to determine his competency at time of alleged offenses
as well).
ii. Privacy Concerns for Witness Where the sought to crossexamine a government witness over a psychiatric report that
had found him competent, the trial judged refused to permit it.
United States v. Lopez (4th Cir. 1979) (ones psychiatric
history is an area of great personal privacy which can only be
invaded in cross-examination when required in the interests of
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Tracy Lemke
justice, e.g., going to the witness qualification to testify and
ability to recall; court relied on FRE 403 to exclude).
g. Questionable Reliability of Eyewitness Identification Such
testimony by experimental psychologists is sometimes offered, and
courts sometimes exhibit some sympathy toward such proof. United
States v. Downing (3d Cir. 1985).
i. BUT most courts remain unconvinced of the need for and
utility of such proof, and the prevailing approach accords a
large measure of discretion to the trial judge. United States
v. Hall (7th Cir. 1999).
3. Character for Truth and Veracity Showing that he is by disposition
untruthful.
a. General Ideas:
i. Recall that FRE 404 generally bars the use of character
evidence to prove conduct outside of court. Showing that a
person is untruthful involves character evidence to show a
particular kind of conduct in court, and FRE 404(a)(3) makes
an exception permitting this strategy. FRE 608 and 609
authorize (and regulate) this means of attack.
ii. It is embarrassing, even humiliating, for a witness to have his
veracity called into question, and FRE 611 authorizes judges to
protect witnesses from harassment or undue embarrassment.
When a witness is a party, such impeachment raises a risk of
prejudice similar to that which FRE 404 guards against.
iii. However, a party may lose much of the protection that FRE
404 provides if he decides to testify, for doing so opens him up
to impeachment under FRE 608 and 609. Yet, testifying does
not sacrifice all protection of FRE 404. See United States v.
Fountain (7th Cir. 1985) (prosecutor should not have asked
whether he was a peaceable man which was not a proper
question because violent men are not necessarily liars).
b. Three Methods:
i. Cross-examining the target witness about non-conviction
misconduct casting doubt on his honesty (FRE 608(b)).
ii. Cross-examining the target witness about convictions for
certain kinds of criminal acts (FRE 609).
iii. Testimony by a character witness that the target witness is
untruthful (FRE 608(a)).
ii. Specific Impeachment Specific in calling into doubt particular points in the
testimony of the witness (hence suggesting the possibility of error of falsehood on
other points) but indefinite because they do not necessarily reveal the underlying
cause. There are 2 types:
1. Prior Inconsistent Statements Showing that the witness has made a prior
inconsistent statement (meaning one that conflicts with his current testimony)
(FRE 613).
a. General Ideas:
i. Can be the result of any number of causes, ranging from a
simple failure of memory to bias or fear.
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Tracy Lemke
ii. Can be used weakly to reveal inconsistencies or can be used
strongly to suggest that something has happened.
2. Contradiction Contradicting the witness showing that he is just plain
wrong on one or another point in his testimony.
a. General Ideas:
i. Sometimes the impeachment is done by cross-examination, as
questions force the witness to admit that he erred (even lied) on
some point, but often it is accompanied by extrinsic evidence
(testimony or something else, like a writing or recording),
which for convenience we may call counterproof.
ii. Few witnesses testify so perfectly that nothing they say can be
challenged; however, no good trial lawyer would chase after a
witness at every opportunity.
iii. Impeachment by contradiction is limited by FRE 403 and 611.
iv. This method of impeachment is an overlay on all the other
rules of impeachment.
b. Counterproof Admitted Only If Additional Relevance (Dual
Relevancy):
i. Admitted if contradicts and also tends to prove a substantive
point.
ii. Admitted if contradicts and also tends to prove some other
impeaching point, e.g., showing bias.
iii. Usually excluded if only contradicts, e.g., contradicts on a
collateral point; sometimes, however, courts admit
counterproof on such a point where it seems that a witness
could not be innocently mistaken on the point.
c. Linchpin Exception Notwithstanding dual relevance, if the
contradiction makes the whole story fall apart, then it can be used to
impeach.
i. Policy Arguments:
1. Controlling the volume of evidence.
2. Attempt to identify the sorts of contradictions that
strongly bear on credibility.
d. Policy Arguments for Recognizing Contradiction As a Method
of Impeachment:
i. Justifies departing from the normal trial sequence (when it may
be more powerful).
ii. Justifies admitting some evidence that would otherwise be
excluded, e.g., evidence of prior accidents admissible after
witness testifies that she never had an accident before (witness
opens the door). Cf. Atkinson v. Atchison, Topeka &
Santa Fe Ry. (10th Cir. 1952).
1. BUT the adverse party cannot open his own door by
eliciting testimony that a witness considered himself a
good driver, and then proffer evidence of prior
accidents. Nesbit v. Cumberland Contracting Co.
(Md. 1950).
e. Conflict Between FRE 608(b) and Contradiction? Not really;
while FRE 608(b) does not permit use of extrinsic evidence to prove
29

Tracy Lemke
untruthfulness by non-conviction misconduct, that rule regulates only
one mechanism of impeachment, not others: It speaks to impeachment
by showing untruthful disposition, not impeachment by contradiction.
United States v. Opager (5th Cir. 1979).
c. Basic Rules:
i. FRE 608(b): Cross-Examination on Non-Conviction Misconduct Specific
instances of the conduct of a witness, for the purpose of credibility, other than
conviction under FRE 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1)
concerning the witness character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of another witness as
to which character the witness being cross-examined has testified.
1. Application:
a. The rule endorses cross-examination on instances of non-conviction
misconduct if the court, in its discretion, decides that it tends to bear
on veracity.
b. Just putting such questions can impeach, no matter how the witness
replies, for the odor raised by the question may linger long after any
denial.
i. BUT it is a serious abuse for counsel to ask the questions
without having a good-faith basis. Michelson v. United States
(1948).
c. The rule does not require pretrial notice that such questions are going
to be asked, so there is no assurance that the basis will be examined in
advance; however, some judges insist that lawyers warn them, and one
State Supreme Court created a notice requirement (Minn.).
d. Most modern cases disapprove of cross-examination about behavior
that does not directly involve lies or deception. Thus, questioning
about drug use, violence, or sexual relationships is generally
disapproved, although occasionally such points come out in attacks
that show bias or motivation on the part of the witness.
e. Buss: In reality, this method of impeachment is not used very much:
You are stuck with the witness answer, and you may be seen as
bullying the witness; however, FRE 609 is used all the time.
2. Policy Arguments for Excluding Extrinsic Evidence:
a. We think it is probative, but not all that probative.
b. We think the jury learns something by how the witness reacts to this
on cross-examination.
c. Worried about how much time is spent administrative concerns.
3. Interrelation of FRE 608(b) and FRE 609:
a. The extent to which a party could forgo the opportunity to offer proof
of a conviction under FRE 609 to gain the opportunity to go into more
detail in cross-examination through FRE 608(b).
b. Buss: Courts have the discretion, but a better reading is probably that
FRE 609 precludes this use.
i. Surely we cannot want someone to use FRE 608(b) to
circumvent the very particularized provisions of FRE 609.
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Tracy Lemke
ii. FRE 609 supports the concepts of rehabilitation introducing
evidence under FRE 608(b) destroys this objective.
iii. BUT Abel says that just because evidence is inadmissible
under one rule does not mean you cannot admit under another
rule; plus, there is no express prohibition to such use.
ii. FRE 609: Proving Prior Convictions
1. FRE 609(a): General Rule For the purpose of attacking the credibility of
a witness, (1) evidence that a witness other than an accused has been
convicted of a crime shall be admitted, subject to FRE 403, if the crime was
punishable by death or imprisonment in excess of one year (felony), and
evidence that an accused has been convicted of such a crime shall be
admitted if the court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused; and (2) evidence
that any witness has been convicted of a crime shall be admitted if it
involved dishonesty or false statement, regardless of the punishment.
a. General Ideas:
i. Generally courts let the calling party disarm an expected
attack by bringing out prior convictions during direct.
ii. In addition to criminal contexts, FRE 609 applies to civil cases
as well.
b. Policy Argument:
i. Serious crimes show a conscious disregard for the rights of
others.
c. Example:
i. United States v. Lipscomb (D.C. Cir. 1983) The in a
heroin dealing trial had an 8-year-old robbery conviction that
he did not want brought out. The judge denied his motion to
prevent such cross-examination. As a result, the did not
testify. The argued that the district court must usually
inquire into the underlying facts and circumstances, and that if
the judge had done so here, he might have ruled the prior
conviction inadmissible because a robbery conviction does not
speak to truthfulness. The court found that the specific facts
and circumstances test was only required when considering a
conviction under FRE 609(b), not for balancing under FRE
609(a). The court favored looking into the specifics, but
held, based on the language of Rule 609, the legislative
history, and sound policy, that the district court has
discretion to determine when to inquire into the facts and
circumstances underlying a prior conviction and how
extensive an inquiry to conduct. The conviction was
affirmed.
d. Balancing Factors to Consider Factors to consider: (1) the nature
of the conviction, (2) its recency or remoteness, (3) whether it is
similar to the charged offense (prejudice is great when similar), (4)
whether s record is otherwise clean (convictions are presumably
more probative of credibility if they show a continuing pattern rather
than isolated instances), (5) the importance of credibility issues, and
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Tracy Lemke

e.

f.

g.

h.

i.

j.

(6) the importance of getting the s own testimony. Gordon v.

United States (D.C. Cir. 1967).
Limits to Information Elicited Generally the impeaching party is
allowed to bring out only the fact of prior conviction, the date, and the
type of crime, but not the underlying details of its commission.
United States v. Dow (7th Cir. 1972).
i. BUT see United States v. Bogers (8th Cir. 1980) (approving
cross-examination that brought out terms of sentence, fact that
was currently incarcerated, and fact that shotgun was
involved in the assault for which he was previously
convicted).
Explanation on Redirect? See United States v. Jackson (D.C. Cir.
1980) (on redirect, presumably could have brought out certain
facts that might mitigate somewhat the bad man image that the
conviction might have suggested).
i. BUT where does this end? What if the prosecutor then has
further information to rebut the redirect?
Similar Crime? When the prior conviction is for a similar crime, the
danger for prejudice is great; courts should consider use of a limiting
instruction which limits the disclosure to the fact of conviction without
revealing its nature. United States v. Beahm (4th Cir. 1981).
Theft and Dishonesty or False Statement Many courts think
crimes of theft do not involve dishonesty or false statement. United
States v. Givens (9th Cir. 1985) (crimes of violence, theft crimes, and
crimes of stealth do not involve dishonesty or false statement within
the meaning of Rule 609(a)(2)).
i. BUT see McHenry v. Chadwick (6th Cir. 1990) (convictions
for shoplifting and concealing stolen property involved
dishonesty or false statement).
ii. Do Facts Count? Most courts have said that the actual facts
surrounding the theft crime do count in determining dishonesty
or false statement. United States v. Payton (2d Cir. 1998)
(larceny conviction of s mother, arising out of false
statements in her application for food stamps, fits second
prong; court would look beyond the elements of the offense
to determine this point).
Cases Approving Resort to FRE 609(a)(2):
i. United States v. Bay (9th Cir. 1984) (forgery)
ii. United States v. Williams (5th Cir. 1981) (bribery)
iii. United States v. Lester (9th Cir. 1984) (filing false police
report)
iv. United States v. McClintock (9th Cir. 1984) (mail fraud)
Cases Disapproving Resort to FRE 609(a)(2):
i. United States v. Mansaw (8th Cir. 1983) (prostitution)
ii. Czajka v. Hickman (8th Cir. 1983) (rape)
iii. United States v. Mehrmanesh (9th Cir. 1982) (narcotics)
iv. Reyes v. Missouri P. R.R. (5th Cir. 1979) (public intoxication)
v. United States v. Harvey (8th Cir. 1978) (assault)
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Tracy Lemke
k. Pleading to Lesser Charge See United States v. Lane (9th Cir.
1983) (government witness was charged with felony arson, but
pleaded guilty to a misdemeanor lesser included; excluding prior
conviction, for misdemeanor does not fit FRE 609(a)(2) unless it
involved dishonesty or false statement).
l. Discretion Under FRE 609(a)(2)? Most courts have concluded that
trial judges lack discretion to disallow impeachment for crimes
involving dishonesty and false statement and that FRE 403 does not
operate in this context. United States v. Morrow (6th Cir. 1991).
m. Preserving for Review The was indicted on charges of conspiracy
and possession of cocaine with intent to distribute. The moved for a
ruling that a prior conviction be precluded from use in impeachment.
The did not commit to testifying if the motion were granted, nor did
he proffer to the court what his testimony would be. The district court
ruled the prior conviction was admissible, but was prepared to exclude
it depending on the s testimony. The chose not to testify, and the
jury returned guilty verdicts. The SC stated that to perform the
balancing of probative value against prejudicial effect, the court must
know the precise nature of the s testimony. We hold that to raise
and preserve for review the claim of improper impeachment with
a prior conviction, a must testify. Luce v. United States (1984).
i. Note that this decision only establishes the procedure to be
followed in federal criminal prosecutions; States remain free
to follow alternative procedures where a who does not testify
may nevertheless challenge an adverse FRE 609 ruling if he
establishes on the record that he will in fact take the stand and
testify if his challenged prior convictions are excluded and
sufficiently outlines the nature of his testimony. United
States v. Cook (9th Cir. 1979).
ii. If a makes and loses a motion in limine to exclude his
convictions, then testifies and brings them out on direct in
order to minimize them, can he claim error on review, or does
his strategy preclude review? See United States v. Ohler (9th
Cir. 1999) (after making and losing motion to exclude
convictions in drug trial, took the stand and testified about
them on direct, which waived her right of review).
2. FRE 609(b): Time Limit Evidence of a conviction is not admissible if
more than ten years has elapsed since the date of conviction or release,
whichever is the later date, unless the court determines, in the interests of
justice, that the probative value supported by specific facts and
circumstances substantially outweighs its prejudicial effect. However,
evidence of a conviction more than 10 years old is not admissible unless the
proponent gives to the adverse party sufficient advance written notice.
a. Effect of Parole Violations If a person convicted flees when
released on parole, the ten-year period is extended. United States v.
McClintock (9th Cir. 1984).

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Tracy Lemke
b. Question:
i. When does the clock stop: date of offense, date of indictment,
or date of trial start? Argue for date of offense or indictment;
otherwise, the wrong incentives are created because there are
then strategic advantages to delaying a trial.
3. FRE 609(c): Effect of Pardon, Annulment, or Certificate of
Rehabilitation Evidence of a conviction is not admissible if (1) the
conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent, and that person has not been convicted
of a subsequent [felony], or (2) the conviction has been the subject of a
pardon, annulment, or equivalent based on a finding of innocence.
a. Narrowly Interpreted See Wilson v. Attaway (11th Cir. 1985)
(first offender statute authorizes the judge to place on probation
without entering judgment of guilt, if he pleads guilty; statute also
provides that upon successful discharge, he is considered rehabilitated
and as if he did not have a conviction; still a sentence under this statute
is a conviction for purposes of FRE 609).
4. FRE 609(d): Juvenile Adjudications Evidence of juvenile adjudications
is generally not admissible. The court may, however, in a criminal case
allow evidence of a juvenile adjudication of a witness other than the
accused if conviction of the offense would be admissible to attack the
credibility of an adult and the court is satisfied the admission is necessary
for a fair determination of the issue of guilty or innocence.
a. Policy Argument:
i. Transgressions by young people are not as serious as adult
crimes and not as probative of credibility.
b. Tried As an Adult What counts is not the age of the offender but
the nature of the proceedings against him: Convictions under
statutory schemes permitting prosecution of youthful offenders as
adults but providing alternate penalties fall outside the restrictive
language of FRE 609(d), which embraces only special juvenile offense
schemes. United States v. Ashley (5th Cir. 1978).
5. FRE 609(e): Pendency of Appeal The pendency of an appeal therefrom
does not render evidence of a conviction inadmissible. Evidence of the
pendency of an appeal is admissible.
a. Policy Argument:
i. Convictions are so much more often affirmed than reversed.
b. Expanding the Rule An actual judgment may not be necessary, and
the cross-examiner may ask about both pleas and verdicts of guilty.
United States v. Smith (9th Cir. 1980) (permitting cross-examination
on guilty plea).
iii. FRE 608(a): Character Witnesses The credibility of a witness may be attacked
or supported by evidence in the form of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.

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Tracy Lemke
1. General Ideas:
a. For either opinion or reputation testimony, there must be a foundation,
and at least some minimal elaboration is allowed.
b. As foundation for opinion testimony, a period of personal
acquaintance is needed.
2. No Residency Requirement While usually a character witness has resided
in the same community with the principal witness and knows him personally
or knows his reputation in that setting, a character witness need not satisfy a
formal residency requirement. United States v. Mandel (4th Cir. 1979).
3. Expert Testimony Modern cases repeatedly uphold trial court rulings
excluding psychiatric testimony. Nichols v. American National Insurance
(8th Cir. 1998).
a. BUT there is one outstanding exception the prosecution of Alger
Hiss for perjury. United States v. Hiss (S.D.N.Y. 1950).
iv. FRE 613: Prior Statements of Witnesses
1. FRE 613(a): Examining Witness Concerning Prior Statement In
examining a witness concerning a prior statement, whether written or not,
the statement need not be shown nor its contents disclosed to the witness
at that time, but on request the same shall be shown or disclosed to opposing
counsel.
2. FRE 613(b): Extrinsic Evidence of Prior Inconsistent Statement of
Witness Extrinsic evidence of a prior inconsistent statement is not
admissible unless the witness is afforded an opportunity to explain or
deny the same and the opposite party is afforded an opportunity to interrogate
the witness thereon, or the interests of justice require. This provision does not
apply to admissions of a party-opponent as defined in Rule 801(d)(2).
a. General Ideas:
i. Extrinsic evidence may be in the form of testimony by other
witnesses.
ii. While the mere fact of a prior inconsistent statement is
indefinite in that it does not explain why the witness has
changed his view, the cross-examiner may be able to draw
from the larger setting all sorts of theories, taking a small blot
on the credibility of the witness and making it spread.
iii. The impeaching use of prior inconsistent statements is
considered a non-hearsay use; thus, many prior inconsistencies
may be admitted to impeach, but not as substantive evidence.
b. Sequence Is Not Specified The rule does not say that the chance to
explain must come before extrinsic evidence is admitted, if a witness
later has a chance to explain, the rule is satisfied. Wilmington Trust
Co. v. Manufacturers Life Insurance (11th Cir. 1985) (FRE 613(b)
contains no specification of any particular time or sequence; could
have requested that the witness be permitted to take the stand in
rebuttal but made no such request).
c. If Witness Is Excused, Who Carries Burden? There is no majority
rule on this one; the courts will assess efficiency, workability, etc., to
determine who bears the burden and cost of recalling the witness, or of
who wins or loses a motion to exclude.
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Tracy Lemke
d. Pragmatic Application:
i. Jones v. Collier (8th Cir. 1985) (trial court properly refused to
admit extrinsic evidence of prior statement by witness who had
testified the day before and returned to his place of
incarceration 300 miles away, for did not lay any foundation
for his rebuttal, apparently as part of trial strategy).
ii. United States v. McLaughlin (9th Cir. 1981) (defense properly
allowed to offer extrinsic evidence of prior statement, after
reminding declarant of the meeting in question on cross;
government was free to recall witness to give him further
opportunity to explain).
v. FRE 607: Who May Impeach The credibility of a witness may be attacked by
any party, including the party calling the witness.
1. Abuse of FRE 607 In a criminal case, it is an abuse of the rule for the
prosecution to call a witness it knew would not give it useful evidence, just so
it could introduce hearsay evidence against the in the hope that the jury
would miss the subtle distinction between impeachment and substantive
evidence. United States v. Webster (7th Cir. 1984) (while impeachment by
prior inconsistent statement may not be permitted where employed as
mere subterfuge to get before the jury evidence not otherwise admissible
[citing Morlang], there was no bad faith here; s counsel objected to
prosecutors request for voir dire, which would have provided a foundation for
defense counsel to object).
a. Exception To Morlang Webster is not the only case restricting the
Morlang doctrine; Morlang cannot apply to witnesses who are in some
sense crucial to the calling partys case. United States v. DeLillo (2d
Cir. 1980).
b. Buss: It is not easy to argue bad-faith on the part of the attacking
party.
i. The classic witness is not going to say just helpful things; you
have to be able to allow the party (usually a prosecutor) to put
on the case.
ii. To require selective silence would make the case look strange
and might prejudice the jury against a party.
d. Repairing Credibility:
i. General Ideas:
1. Generally courts disallow any attempt to repair credibility before the attack
has come.
2. The repair should be made at the point of attack, e.g., if attack is about bias,
have to rehabilitate bias.
ii. Permissible on Direct:
1. For any party to adduce testimony by his expert to the effect that he is being
paid for his services.
2. For the prosecution or defense to bring out that its witness has been convicted
of crimes.
3. For the prosecutor to bring out that its witness has entered into a plea bargain.
4. For the calling party to bring out any connection or affinity that he has with
the witness (obvious grounds of bias that the other side would raise).
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Tracy Lemke
iii. If Defense Brings Out s Past Convictions First, Should Prosecutor Be
Permitted To Revisit? Possibly; where fails to fully enumerate all of his prior
convictions, prosecutor is entitled to ask the of what crimes or misdemeanors he
has been convicted, and to ask whether denies being convicted of a particular
crime on a particular date in a particular court). Acevedo v. State (Miss. 1985).
iv. If Defense Brings Out That Prosecution Witness Has Entered Plea Agreement,
Should Government Be Permitted Chance to Rehabilitate? Usually courts say
yes and permit the government on redirect to bring out that the witness promised to
testify truthfully and completely and that the deal is null and void if he does not
do so.
v. Evidence of Good Character Once character for truthfulness has been attacked,
evidence of good character, in the form of opinion or reputation, is allowed under
FRE 608(a). Remember to lay a foundation for the witness opinion.
1. BUT this can be risky if the attacking party knows of specific instances of bad
behavior; the attacking party can question the character witness on these
(assuming the cross-examiner has a reasonable basis for the questions)
instances. With the questions likely to be damning, the attacking party comes
out ahead regardless how the character witness replies. If the witness does not
know of the incidents, then he lacked important information about the ; if he
did know of them, then his good opinion of s honesty is hard to understand.
2. Expert Testimony of Truthfulness Generally courts exclude such
testimony. United States v. Brodie (9th Cir. 1988).
a. Policy Arguments:
i. Experts do not know how to distinguish truthful from
untruthful tendencies or dispositions in people.
ii. Juries can resolve credibility issues.
b. Exceptions:
i. Child Sexual Abuse Often experts now give social
framework testimony describing familial or other settings in
which abuse occurs, or syndrome testimony focusing on
behavioral patterns of the actors.
ii. Rape Trauma Syndrome & Battered Woman Syndrome
Show parallel developments to that in child abuse situations.
iii. BUT most modern opinions insist that experts should not
testify that the child is truthful or his story is believable. State
v. Keller (Or. 1993).
c. Point to Consider:
i. An expert who describes syndromes and ventures the opinion
that the story of the complaining witness fits a pattern is
actually saying that the story is plausible, isnt he? Is he also
saying that people who give such accounts fit a pattern in
which truthfulness is a common element? Doesnt that mean
such testimony is covered by FRE 608? If so, it would seem at
the very least that an expert should not give such testimony
about the complaining witness unless he testifies and his
character for veracity is attacked. And arguably the effect of
FRE 608 is to bar any direct comment on the truthfulness or
believability of a particular story, since the Rule contemplates
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far more generalized testimony about the disposition of the
witness toward truthfulness.
d. Physical Symptoms Experts may be permitted to testify on the basis
of physical symptoms. United States v. Bowers (5th Cir. 1981)
(approving testimony by pediatrician describing battered child
syndrome, which may show that the parents explanation of the
childs injuries is a fabrication and let jury infer not only that childs
injuries were not accidental but that parent deliberately caused them).
vi. Prior Consistent Statements:
1. General Idea:
a. At common law, prior consistent statements were admissible to
rehabilitate a witness, provided that the attacking party had suggested
that his testimony was tainted by recent fabrication or undue influence
or motive.
2. Predating The rehabilitative effect can be clearest if the witness had made
his prior consistent statement before the alleged motive or influence came into
play.

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HEARSAY
1. Hearsay What Is It? (Rule 801)
a. Definitions:
i. Hearsay An out-of-court statement offered to prove the matter asserted (offered
for its truth).
ii. Assertive Conduct The use of language or an equivalent to express ideas.
1. Usually concerned with human verbal expression, but also includes
standard nonverbal cues, such as nodding or shaking the head or shrugging
the shoulders, pointing as a means of identifying or selecting, or even coded
signals.
b. General Ideas:
i. Hearsay can take different forms: direct, circumstantial, or oblique.
1. Some question whether oblique statements are really hearsay, but Buss
believes that they clearly are.
ii. We will generally assume that conduct is not an assertion, so the burden is on the
party trying to keep it out as hearsay to prove it was an assertion.
c. Basic Rules:
i. FRE 801(a): Statement A statement is (1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an assertion.
ii. FRE 801(b): Declarant A declarant is a person who makes a statement.
iii. FRE 801(c): Hearsay Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.
d. Policy Arguments:
i. Reasons to Generally Exclude Hearsay:
1. Absence of cross-examination Not subject to this truth-testing technique.
2. Absence of demeanor evidence The trier lacks those impressions and clues
which voice, inflection, expression, and appearance convey.
3. Absence of the oath The trier of fact has no indication that the out-of-court
declarant felt any sense of moral or legal obligation to speak the truth.
e. The Risks of Hearsay:
i. Misperception This is not only a function of sensory capacity (such as acuity of
vision) but of physical circumstance (such as distance and alignment of the sun) and
of mental capacity and psychological condition.
ii. Faulty Memory Memory problems would likely increase with the time lapse
between an original observation and a court appearance.
1. Cross-examination may be very useful in establishing, eliminating, or
reducing uncertainties.
iii. Misstatement/Ambiguity Problems with faulty narration.
1. Cross-examination can get at the limits and intended meaning of a statement.
2. The oath or affirmation would likely bring home the need to speak with care.
3. Demeanor would add dimension to the way the declarant affirms or qualifies
his story of what happened.
iv. Insincerity/Lack of Candor The declarant may have shaded the truth
(consciously or unconsciously, e.g., affection or animus towards a party) or there may
be outright deliberate lying or deception
1. Cross-examination works well to bring to light subconscious distortion and
sometimes succeeds in exposing lies.
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2. The oath or affirmation and the whole environment of the courtroom might at
least quell casual impulses to deceive.
3. Demeanor provides clues when a witness tries to mislead.
f. Examples:
i. Silence as Hearsay? Man dies of carbon monoxide poisoning from hotel heater.
The s allege that the gas heater was defectively installed and improperly vented and
maintained. The s offered testimony concerning the number of previous guests
who stayed in the room in question and had not complained. The court found that
the evidence was relevant on whether the carbon monoxide came from the heater or
the smoldering chair and clothing. The court held that it was not hearsay as it
derived its value solely from the credibility of the witnesses themselves and it was
not dependent upon the veracity of other persons. Cain v. George (5th Cir. 1969).
1. Evidence of silence here is not an assertion, as is required to qualify as
hearsay under FRE 801.
2. BUT arent we worried about jury misuse of this evidence?
a. BUT maybe we have faith that a jury will understand that silence is
not all that impressive.
ii. Lying and Hearsay Most courts that consider lying have said that it is not hearsay
because the lie is not offered to prove the truth of anything asserted, but to show it
is false. Anderson v. United States (1974).
1. BUT this justification offered by courts is sometimes unsatisfying; there are
other arguments:
a. The book focuses on the performative aspects of lying words being
used to set events in motion, not a statement to convey information.
b. Buss: Better explanation is that you are not really offering the
statements for anything other than that the statement was made; you
are then offering other information to reveal that it was in fact a lie.
g. Non-Hearsay Uses:
i. Definition:
1. Statement is offered for purposes other than proving what it asserts.
ii. Categories:
1. Impeachment: Prior Inconsistent Statement The witness and the
declarant are the same person. When offered in this way, prior statements are
universally judged to be non-hearsay, even when the message to the jury
may be antithetical to the idea of hearsay and its admissibility.
a. Policy Argument:
i. The conflict between the statement and the testimony shows
the witness has vacillated, which sheds light on credibility
without taking the prior statement as proof of what it asserts.
b. BUT there is a risk of misuse by the jury the remedy is to seek
exclusion under FRE 403
i. BUT the impeaching mechanism is so well established that an
objection on this ground usually fails.
c. Application:
i. Weaker Use Memory is faulty; want a jury to think he is not
consistent, not reliable; not asking the jury to believe the
former statement, just to disbelieve what he says; inconsistency
reveals this is not a witness to be trusted.
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ii. Stronger Use This guy is lying; prior statement was made
before there was a motive to fabricate; aha!!!
iii. A limiting instruction by the judge is likely important to
ensure the jury uses the prior statement only as an
impeachment on witness credibility, not to prove the truth of a
matter.
2. Verbal Acts (or parts of acts) Words that carry legal consequences or
logical consequences independent of their assertive impact, e.g., threats,
demands for cash during a robbery, formation of a verbal contract, utterance
such as Im alive, etc.
a. Words Matter Although the assertive aspect is unimportant, it still
matters what words were used.
i. BUT the focus is not on the declarants subjective intent,
but rather on the kind of external meaning found on the
face of the words or by reference to practice and custom.
b. Used to Prove Intent This is harder because it requires a subtle
sense of the underlying substantive law.
i. For intent, the inclination is to think it has to be hearsay use.
1. BUT the willingness to make the statement at all says
something about intent because he said it; think about
the distinction between the state of mind of the intent
vs. the effect of the statement, e.g., a speaker does not
have to believe the truth of a conveyance.
c. Examples:
i. Civil Law Contract, fraud, defamation, employment
discrimination, proof of apparent authority, and proof of
ratification or approval of behavior.
ii. Criminal Law Fraud, perjury, conspiracy, and cases where
acts having verbal elements are at the heart of the charged
crime (like gambling and sales of drugs), as well as cases
where words amount to threats and force (like extortion,
kidnapping, and robbery) or have other operative effect (like
consent).
iii. Logical Consequences Classic example is when there is a
question on whether someone is alive or dead, and a person
hears the words, Im dead in certain contexts, it does not
matter what the words are, or whether they are true or not, but
only that words were said, so that the person was alive,
regardless of the words!
3. Effect on Listener or Reader Statements which help prove knowledge,
notice, encouragement or coercion, and similar external influences.
a. Examples:
i. Knowledge or understanding itself can count, as in
prosecutions for knowing possession of stolen property.
United States v. Kohan (2d Cir. 1986).
ii. Often bears on whether the behavior of a hearer/reader was
reasonable; even if mistaken, the fact that the speaker made
the statement bears on the reasonableness of the hearers belief.
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iii. Knowledge can be a critical fact when bad faith is the
question. United States v. Nieto (10th Cir. 1995) (proof that G
told defendant N to take car; offered to show effect of on N).
iv. Can explain what might otherwise seem to be overly
aggressive or unjustified enforcement efforts. United States v.
Wilson (10th Cir. 1997) (testimony describing controlled buy
and information on drug transactions to explain why
government began its investigation and provide background).
v. Not to be used as proof of agency (Gas Company problem in
book).
1. BUT if there are additional facts, such as: hes been
representing himself as an agent for weeks; everyone
knew he was doing this; fact that company did or did
not do something to stop the guy; all this would go to
establish ostensible agency.
4. Verbal Objects Words which amount to identifying characteristics of a
physical object on which they appear; sometimes words in their audible
dimension in spoken form can be similarly useful as verbal markers that
help identify a speaker or mark an event or point in time.
a. General Ideas:
i. Witness essentially authenticates an object.
ii. The proponent has what amounts to appropriate foundation
testimony linking an object of a particular description to the
events or condition sought to be proved.
iii. Not proving the truth of anything, but using random letters or
numbers to identify something.
b. Buss Test Replace the words with random symbols; then check on
whether you are improperly asserting something sort of fingerprint
evidence.
i. If you are relying on other testimony to make the connection,
then it is not a hearsay use cannot rely on an assertion from
the object itself.
c. Examples:
i. License Plates Providing a means of identification; not
used in an assertive aspect, but as an element in a physical
description.
ii. Nametags As Circumstantial Evidence (Probability
Argument) People without the name in question would be
far less likely to carry an object around with another persons
name attached or affixed; does not depend on any assertive
intent; not asking the jury to listen to the verbiage.
iii. Verbal Markers Verbal statement which is used to mark a
moment in time, e.g., X sees J leave in his car and at the same
moment X hears Y say lets go to a movie and Y remembers
when she suggested the movie.
1. Metaphorical Lasso Barmaid (problem from book)
provides testimony that she saw a certain man (the )
with the woman in question (Stacey) a number of times
and that she pointed out the couple to an undercover
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officer; officer provides testimony that the man the
barmaid pointed out with Stacey was the ; the
barmaids ID thus serves as a verbal marker.
d. Who Is the Declarant? The person who composes the label or puts
it to use is usually the declarant even if a corporate or institutional
entity is involved; sometimes the person who acquires the object to
which the legend is attached should be viewed as the declarant, e.g.,
adds a personalized label or monogram.
5. Circumstantial Evidence of State of Mind Sometimes it is possible to
draw inferences about the declarants state of mind by focusing on the
behavioral or performative aspect of a statement rather than its assertive
aspect.
a. Examples:
i. Performative Aspect: Womans Will Illustrates Negative
Feelings Deceased womans will bequeathing $1 to husband
showed strained relations between husband and wife and her
state of mind, which bore on his expectancy of future support:
fact that she made it was compelling evidence of her
feelings; no need to give it testimonial effect; does not turn
on factual claims or truthfulness. Loetch v. New York City
Omnibus Corp. (N.Y. 1943).
ii. Performative Aspect: Frightened Child See Betts v. Betts
(Wash. Ct. App. 1970) (in custody dispute between father and
mother of five-year-old child, her frightened outburst blaming
the death of her infant brother on the mothers boyfriend was
non-hearsay circumstantial evidence of her state of mind; this
was so regardless of the truth of the statement or if made by
someone who was not competent to testify as a witness).
1. If this had not been ruled non-hearsay, there was a
danger that the evidence would not have been
admissible at all, as under a hearsay exception, due to
reliability (competency) concerns regarding a child
witness.
iii. Behavioral Aspect: Words As Proof of Derangement
Classic example: if someone goes about saying, I am
Napoleon, such words would be non-hearsay circumstantial
evidence of insanity.
6. Circumstantial Evidence of Memory or Belief
a. Buss: Do not pay attention to this one.
2. Hearsay Admissibility & Exemptions (Rules 801, 802)
a. Generally:
i. FRE 802 Hearsay is not admissible except as provided by these rules or by other
rules prescribed by the Supreme Court pursuant to statutory authority or by Act of
Congress.
b. Hearsay Exemptions:
i. Basic Rules:
1. FRE 801(d)(1): Prior Statement by Witness The declarant testifies at
the trial or hearing and is subject to cross-examination concerning the
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statement, and the statement is (A) inconsistent with the declarants
testimony, and was given under oath subject to the penalty of perjury at a
trial, hearing, or other proceeding, or in a deposition, or (B) consistent with
the declarants testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence
or motive, or (C) one of identification of a person made after perceiving the
person.
2. FRE 801(d)(2): Admission by Party-Opponent The statement is offered
against a party and is (A) the partys own statement, in either an individual
or representative capacity or (B) a statement of which the party has
manifested an adoption or belief in its truth, or (C) a statement by a person
authorized by the party to make a statement concerning the subject, or (D) a
statement by the partys agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the
relationship, or (E) a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy. The contents of the
statement shall be considered but are not alone sufficient to establish the
declarants authority under subdivision (C), the agency or employment
relationship and scope thereof under subdivision (D), or the existence of the
conspiracy and the participation therein of the declarant and the party against
whom the statement is offered under subdivision (E).
a. This rule is also known as the admissions doctrine.
ii. Policy Arguments Regarding Prior Statements:
1. You still get delayed cross-examination and delayed demeanor evidence.
2. The prior statement might be more truthful because it was more
contemporaneous with the incident.
3. Events are fresher in the mind; thus, the prior statement may be especially
valuable; you may gain benefits of spontaneity.
4. BUT there are policy arguments against:
a. Cross-examination might not bring out things lost in context.
b. Concern with basic incentives those who already have their eyes on
litigation may have their minds on generating out-of-court statements.
c. You lose the demeanor evidence you get from the making of the
statement itself.
d. You lose whatever you get from the oath.
iii. Policy Arguments Regarding Admissions:
1. Expresses the philosophy of the adversarial system, in which each party is
responsible for making or breaking, winning or losing, his own lawsuit by
his conduct both in and out of court.
2. A party can hardly complain that he could not cross-examine himself.
3. Admissions are a kind of conduct that provide circumstantial evidence of what
they assert.
4. Admissions give rise to estoppel notions.
5. Fairness suggests that one should simply not be allowed to complain that his
own words are proved against him.

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iv. Application:
1. FRE 801(d)(1)(A): Prior Inconsistent Statements This rule has
connections with impeachment.
a. 3 Requirements:
i. Witness must be cross-examinable concerning the prior
statement.
ii. Prior statement must be inconsistent with present testimony.
iii. Prior statement must have been made under oath.
b. The Forgetful Witness Brings problems in applying the first two
requirements; and where the witness denies even having made a prior
statement or claims it was a lie, special problems arise in applying the
first requirement.
i. United States v. Williams (7th Cir. 1984) We do not read the
word inconsistent in the rule to include only statements
diametrically opposed or logically incompatible.
Inconsistency may be found in evasive answers, silence, or
changes in positions. Particularly in a case of manifest
reluctance to testify, if a witness has testified to [certain] facts
before a grand jury and forgets them at trial, his grand jury
testimony falls squarely within FRE 801(d)(1)(A).
ii. Feigned Lack of Memory Requirement Some state
courts state that a lack of memory at trial is inconsistent with a
prior positive statement only if feigned. People v. Simmons
(Cal. App. 1981).
1. BUT federal cases have not held that lack of memory
must be feigned. The issue is still up for grabs in
federal courts.
iii. Policy Arguments for Extension to All Memory Loss:
1. We do not want to give incentives for people to get to
witnesses, and then have witnesses getting amnesia
all the time.
2. We are not worried about fairness.
3. We might really need the evidence here since, unlike
when there is a feigner, we cannot get it out on cross.
iv. What If the Witness Cannot Remember Making the
Statement? Special problems arise when not only cant the
witness remember the underlying events, but he also claims
that he cannot remember making the prior statement. Compare
United States v. DiCaro (7th Cir. 1985) (this requirement
should not be made effectively meaningless, and in many if
not most cases where witness suffers total memory lapse
concerning both the prior statement and its contents he cannot
be considered subject to cross on statement) with United
States v. Keeter (7th Cir. 1997) (admitting grand jury
testimony by witness who feigned amnesia at trial, which did
not block the necessary defense cross at trial).
1. BUT should DiCaro be dismissed as obsolete after
United States v. Owens (1988) (one may be subject
to cross-examination under FRE 801(d)(1)(C) even
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if lack of lack of memory about events makes him
unavailable as a witness under FRE 804)?
2. Should the rule be interpreted to mean only that the
speaker must sit still long enough to answer questions,
hence that one who remembers nothing about events or
his prior statement is still subject to cross-examination
concerning that statement?
v. Obstinate Witness While federal cases suggest the crossexamination requirement can be easily satisfied, some state
courts have concluded that the inability to cross-examine an
obstinate witness bars use of his prior statement as substantive
evidence. People v. Rios (Cal. App. 1985) (observing
demeanor of totally recalcitrant witness when questioned
about matters he refuses to address is meaningless, for there is
no way to test the truth of his prior statement; admitting it
would deny constitutional right to confrontation and crossexamination).
2. FRE 801(d)(1)(B): Prior Consistent Statements This rule has connections
with rehabilitation.
a. Three Requirements:
i. Witness must be cross-examinable concerning the prior
statement.
ii. Prior statement must be consistent with present testimony.
iii. Prior statement must be offered to rebut a charge of recent
fabrication or improper influence or motive.
b. General Ideas:
i. The rule contains limits that discourage resort to out-of-court
statements as proof at trial this expresses the fear that
deferred cross-examination is simply not as effective as
contemporaneous cross-examination; the danger is that where
the witness sticks to his original story, any falsehood may
harden and become unyielding to the blows of truth struck by
the cross-examiner. State v. Saporen (Minn. 1939).
ii. There is no requirement that the prior statement be uttered
under oath in a proceeding, thus embracing any prior
consistency.
c. Questions:
i. What Kind of Attack Invokes? Clearly the rule reaches
easy cases where there are express charges of fabrication, but
the rule also extends to where there are implied charges, e.g.,
You are the mother of the , arent you? or Didnt you talk
with s counsel shortly before testifying here today? Note
that cross-examination questions regarding prior inconsistent
statements usually do not invoke this rule, but instead are
considered impeachment.
ii. What Consistent Statements Rebut? Prior consistency
tends to rebut an attack (repairing or rehabilitating the
witness) only if uttered before the supposed influence or
motive came into play (Pre-Motive Requirement). Tome v.
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United States (1995). However, Tome can be interpreted in
two different ways:
1. Tome might mean that a consistent statement must
satisfy the pre-motive requirement if it is offered to
refute a claim of improper influence or fabrication, and
then it may be used both to rehabilitate and as
substantive evidence under the rule. By this reading,
Tome is a broad decision that addresses both possible
uses of such statements. State v. Veis (Mont. 1998).
This seems the better reading according to Buss.
2. Tome might mean that a consistent statement must
satisfy the pre-motive requirement if it is offered to
refute a claim of improper influence or fabrication, but
only if it is to be used as substantive evidence as well.
By this reading, Tome is a narrow decision that
addresses only the use of prior consistent statements as
substantive evidence. United States v. Toney (6th Cir.
1998).
a. Would argue that Tome is confined to the
requirements for admission under FRE
801(d)(1)(B) (quoting language straight from
the opinion) and finish up with Tome has
nothing to say about non-substantive use of
prior consistent statements to repair damage to
credibility. Accord United States v. Castillo
(2d Cir. 1994) (standard for admitting consistent
statement to rehabilitate is less onerous than
standard for determining whether statement fits
FRE 801(d)(1)(B) and qualifies as non-hearsay).
d. Effect of FRE 801(d)(1)(B):
i. Where the rule applies, it permits substantive use of a prior
consistent statement by a testifying witness the statement can
be taken as additional proof (along with his testimony).
ii. Question That Arises Does FRE 801(d)(1)(B) mean that a
prior consistent statement offered to rebut something other than
a charge of recent fabrication, e.g., to repel a suggestion that
witness testimony reflects a lack of memory, cannot be
admitted at all, or only that it cannot be given substantive
effect?
1. Rule Does Not Control Other Rehabilitative Uses
The majority in Tome is right to say that many kinds of
impeachment cannot be effectively answered by
showing prior consistent statements. While attacks
suggesting faulty memory might be rehabilitated
through prior consistent statements, attacks on character
for truth and veracity suggest the witness is by
disposition untruthful, and prior consistencies do not
effectively rebut such suggestions (similar scenarios
with bias, incapacity, etc.). In such cases, courts would
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likely exclude consistent statements because they lack
relevance to repair credibility and are hearsay if offered
for their truth.
3. FRE 801(d)(1)(C): Prior Statements of Identification This rule applies
primarily in criminal cases and expresses the view that identifying statements
made out of court are more reliable than in-court identifications.
a. The Forgetful Witness Redux The SC has said that the crossexamination requirement can be satisfied for prior statements of
identification even if the witness has forgotten the events. One may be
subject to cross-examination under FRE 801(d)(1)C) even if lack of
memory about events makes him unavailable as a witness under
FRE 804 for purposes of hearsay exceptions. United States v. Owens
(1988).
4. FRE 801(d)(2)(A): Individual Admissions This is a very broad exception,
and many plausible objections to proof in this form are routinely rejected.
The exception is not grounded on notions of reliability.
a. Lack of Personal Knowledge Many cases reject the objection that
declarant lacked personal knowledge when he spoke, and the Advisory
Committees Note endorses this result. Berkowitz v. Simone (R.I.
1963) (although she had not seen either incident, owner admitted that
her dog had bitten two children; her statement was admissible).
b. No Against Interest Requirement FRE 804(b)(3) carves out a
separate exception for declarations against interest, but the
admissions doctrine carries no against interest requirement. People
v. Meyer (Colo. 1999).
c. Conclusory Nature of Admission See Strickland v. Davis (Ala.
1930) (in suit arising out of auto accident, admitting statement by
that he was at fault; admissions need not conform to statements the
witness could make on the stand in his own behalf where he would be
told to be more specific). See also Owens v. Atchison T.&S.F. Ry.
(5th Cir. 1968) (admitting statement that considered the working
conditions safe and proper and knew nothing that could have done
to prevent the accident; opinion rule does not apply).
d. Statements Made By Parties in Altered States A court must make
an assessment about the context of the statement and the nature of the
altered state. Courts will think about how comfortable they are turning
a particular case over to a jury; how much of an ability does a jury
have to properly assess matters?
i. Drunk Declarant See Commonwealth v. Walker (Mass.
App. 1983) (rejecting claim by that he was too drunk to
waive his Miranda rights in a knowing and intelligent fashion,
despite testimony by police officer that he was pretty loaded;
trial court could find that he had his wits sufficiently about
him).
ii. Declarant Is Severely Injured and Hospitalized See
Finnerty v. Darby (Pa. 1958) (admitting statement by
describing accident to police officer in hospital the morning
after; yet at the time he was so severely injured that his life
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was despaired of and his tongue had been sutured to his
cheek to facilitate breathing).
1. BUT see Minn. Stat. Ann. 602.01 (statement by
injured person obtained within 30 days after accident is
presumed fraudulent in later suit; it may not be offered
unless party obtaining it gives the injured person a copy
within 30 days).
iii. Declarant Is Asleep Compare Flavell v. Flavell (N.J. 1869)
(husband sought divorce for adultery, but wife claimed that he
too was an adulterer; he admitted that he met a girl named
Ella while in NY and intoxicated, but the evidence fell far
short of proving adultery even though he called out her name
in his sleep, or when partly intoxicated and half asleep) with
People v. Knatz (N.Y. App. 1980) (in trial for manslaughter
and arson, error to admit girlfriends testimony concerning
statements made in his sleep; the fact that he slept detracted
from their reliability; utterances were ambiguous and did not
unequivocally relate to crime).
iv. Involuntary Confessions These are barred under the Fifth
Amendment, but only where an agent of the state plays some
active role. Colorado v. Connelly (1986) (confession by
experiencing command hallucinations was voluntary for the
purposes of the Fifth Amendment, and his waiver of Miranda
rights was also voluntary, for Miranda protects only against
government coercion).
1. BUT confessions to police by severely injured or
incapacitated s have been excluded. Mincey v.
Arizona (1978) ( was seriously wounded and in
intensive care; his confession, delivered bit by bit in
written form because he was unable to speak, was
involuntary and should have been excluded). See also
Beecher v. Alabama (1967) (murder confession signed
when was in a kind of slumber from morphine, and
was feverish and in intense pain, was inadmissible
because involuntary).
e. Declarant Is a Minor See Fontaine v. Devonis (R.I. 1975)
(statement by three-and-one-half-year-old child that he just ran out
into the street and got hit by the car was inadmissible; such a child
could hardly be expected to elucidate upon the proper nuances to
indicate his freedom from negligence).
f. Prior Guilty Pleas for Criminal Charges Usually such pleas are
admitted in later damage suits arising from the incident.
i. BUT the question is how close is the match between the
criminal and civil contexts; the further apart they may be, the
more likely we are to say that there is a problem with admitting
guilty pleas.

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g. Prior Guilty Pleas for Traffic Infraction See Jacobs v.
Goodspeed (Conn. 1980) (guilty plea to following too closely,
admissible).
i. BUT in general, courts will not admit paying of traffic offenses
people just do not want to go to the trouble of protesting; we
are worried that people really are not willingly accepting
responsibility.
ii. BUT statutes in some states provide that pleas of guilty to
traffic infractions are not admissions of guilt or fault, though
the utility of these may be sharply limited by language
disallowing protection if another person is killed or injured
in an accident.
iii. BUT many state statutes provide that a conviction for a
traffic infraction is inadmissible in any subsequent civil action
for damages.
h. Paying Traffic Fine Rather Than Making Appearance See
Carter v. Rukab (Fla. App. 1983) (through bureaucratic misstep,
driver used informal disposition procedure, and she should not be
deemed to have acted under entirely different procedure where she
would more fully comprehend the significance of an incriminating
admission).
i. State Statute Excluding Traffic Convictions vs. Federal Civil Suit
See McCormick v. United States (D. Colo. 1982) (the evidence
may be inadmissible in state court under state law, but federal court
was required to follow federal procedural rules).
j. Admissions When There Are Multiple Criminal Defendants
Courts often hold that you have to sever into separate trials too much
potential for prejudicial effect.
5. FRE 801(d)(2)(E): Coconspirator Statements This exception is available
in civil and criminal cases alike, whether or not they involve charges of
conspiracy. As a practical matter, however, proving conspiracy is an
elaborate undertaking: Hence the exception seldom appears outside the
context of prosecutions that include counts of criminal conspiracy.
a. Three Requirements:
i. Coventurer declarant and conspired.
ii. Pendency statement made during the course of the venture.
iii. Furtherance statement made in furtherance of the venture.
b. General Idea:
i. Loose notion of agency willingness of the law to say you are
all accountable for one another.
c. Policy Arguments:
i. Because the coconspirator statements are made while the
conspiracy is in progress, such statements provide evidence of
the conspiracys context that cannot be replicated.
ii. Conspirators are likely to speak differently when talking to
each other in furtherance of their illegal aims than when
testifying on the witness stand.
iii. The relative positions of the parties will have changed
substantially between the time of the statements and the trial;
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thus, it is extremely unlikely that in-court testimony will
recapture the evidentiary significance of statements made when
the conspiracy was operating in full force.
d. Standard of Proof Required (1) When the preliminary facts
relevant to FRE 801(d)(2)(E) are disputed, the offering party must
prove them by a preponderance of the evidence under FRE 104(a); (2)
In his preponderance examination, the judge may examine the hearsay
statements sought to be admitted; finally, (3) a judge will decide
whether the three preconditions are satisfied; it is not a matter of
conditional relevance to be decided by the jury. Bourjaily v. United
States (1987).
i. Bourjaily defeats a common law bootstrapping argument.
e. Statement Itself Not Sufficient The last provision of the rule on
coconspirator statements provides that there must be additional
independent evidence; the statement itself is not sufficient to constitute
an admission.
3. Hearsay Exceptions (Availability of Declarant Immaterial) (Rule 803)
a. Policy Argument:
i. The risks inherent in these exceptions are considered minimal because the out-ofcourt declarant is considered trustworthy and highly reliable.
b. Basic Rules and Application:
i. FRE 803(1): Present Sense Impression A statement describing or explaining an
event or condition made while the declarant was perceiving the event or condition,
or immediately thereafter.
1. Policy Arguments:
a. Problems with deception or memory are slight because the declarant
has had no time to lie or forget.
b. Usually there will be some check on the accuracy of the speakers
perception because the speaker may be describing the event to
someone else; however, this is not required.
2. Comparison with Excited Utterances:
a. A present sense impression must describe something, while an
excited utterance is required only to relate to the event that was
startling.
3. Application:
a. Immediacy is the key.
4. Example:
a. Nuttall v. Reading Co. (3d Cir. 1956) (admitting wifes testimony
regarding husbands telephone conversation with his boss and
subsequent characterizations to prove that he was being compelled to
come to work; such characterizations, made substantially at the time
the event they described was perceived, are free from the possibility of
lapse of memory on the part of the declarant).

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ii. FRE 803(2): Excited Utterance A statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition.
1. Policy Arguments:
a. Any motive the declarant might have to tell a lie will be overcome by
the shock of the startling event.
b. Memory is not a problem because the statement must be made close in
time to the event.
c. Might have perception or ambiguity concerns because the excited state
may skew the declarants ability to discern or describe the event.
2. Exam Note:
a. Look for statements beginning with the words, Oh my God, or, Oh,
no or statements that end with an exclamation point.
3. Application:
a. Excitement is the key.
4. Examples:
a. Injured or Unconscious Declarant An injured or unconscious
person may wake up and say something about the cause of the injury.
That statement may be treated as an excited utterance despite the
passage of a long time between the stimulus and the statement since
there is no likelihood that the speakers perception could have been
affected by events that occurred while the speaker was unconscious.
i. BUT some courts may rule otherwise if a statement was made
about a stress-inducing event in response to someones
question.
b. Traumatized Declarant, Delayed Statement A nine-year-old girl,
Lucy, was raped by the . Immediately after the incident, Lucy was
upset and crying. Officer Marshall interviewed Lucy between 45
minutes and one hour, 15 minutes after the assault. By that time, Lucy
was not hysterical nor was she crying, but she did appear disheveled,
nervous, and scared. Officer Marshall solicited the statement by
asking, What happened? The subject matter of the statement did not
identify a specific suspect, but only focused on the event. The court
held that it must appear that the declarants condition at the time
was such that the statement was spontaneous, excited or impulsive
rather than the product of reflection and deliberation. The single
question what happened? is not enough to destroy the
excitement necessary to qualify for the exception. Further a lapse of
about one hour also does not remove the evidence from the
exception, especially where the declarant is a young child. Here,
considering the surprise of the assault, its shocking nature and the age
of the declarant, it was not an abuse of discretion for the trial court to
find that Lucy was still under the stress of the attack when talking to
Marshall. United States v. Iron Shell (8th Cir. 1980).
i. BUT it also helped that there was independent support that
corroborated her statement reduces any reliability concerns
we may have had. Usually you cannot rely on the statement
alone to convict a suspect.
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1. BUT it is hard to get courtroom statements from
children, so this might be all that we can get.
ii. Buss: Sometimes courts in child abuse cases go too far and
admit statements from months later!!
iii. FRE 803(3): Then Existing Mental, Emotional, or Physical Condition A
statement of the declarants then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation, identification,
or terms of declarants will.
1. Statement of Emotion A statement like I feel terrible would be
admissible for its truth.
a. BUT dont we have sincerity concerns because of incentives to
mislead?
i. BUT it comes from a clearer and better position than any other
to assess the declarants state of mind even as compared to a
later assessment in court by the declarant himself.
2. Statement of Belief The exception allows proof of a persons statement of
fact to show that a person believed the fact to be true but prohibits the use of a
persons statements of feeling to prove that a remembered fact is actually true.
a. Examples:
i. Proof that a declarant said, I saw Bill yesterday, would be
inadmissible if offered to prove that the declarant did see Bill;
it would, however, be admissible to show that at the time the
declarant said it, the declarant thought he had seen Bill.
ii. Statements such as I think this product was made by Company
X are admissible to prove what a declarant believes.
b. Concern:
i. We might have FRE 403 concerns when considering whether
to admit statements of belief because we worry that the jury
will use the information to establish the underlying fact of
consequence.
3. Statement of Plan A statement of a persons plan or intention is considered
an expression of then-existing mental state, admissible to prove whether the
declarant had that plan and whether the declarant carried out the plan.
a. BUT a statement about a past act will be hearsay if offered to prove
that the past act occurred.
b. Policy Arguments:
i. Even though the value might be thin, there is some probative
value because we are more likely to do things that we express
an intent to do.
ii. Jurors who hear about a persons statement of a plan can be
expected to be aware that plans are sometimes not
accomplished, so that the risks of having them hear about the
statement of plans are not so great.
4. Statement of Plan Redux A statement of a persons plan to meet another
person may be used to show that the other person went to the location where
the declarant said they would meet.
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a. BUT some courts, realizing the dependence on a large inductive leap,
have permitted this use only when there is additional evidence
suggesting that declarants belief about the future actions of the second
person was accurate.
5. Proof of Insanity A statement such as I am the King of Mars can be used
to support an implication that the speaker was insane based on the conclusion
that the statement reflected the speakers belief.
iv. FRE 803(4): Statements For Purposes of Medical Diagnosis or Treatment
Statements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
1. Policy Argument:
a. People have a compelling self-interest in speaking truthfully to those
who provide medical services.
2. Application:
a. The exception does not require that the statements be made by the
person who needs medical help.
b. The exception does not require that the statements be made to a doctor;
thus, many people involved in the delivery of health care could be
spoken to and fall within the exception.
c. Statements about the cause of the condition must be closely related to
the circumstances of the condition.
i. E.g., a statement of I was hit by a car that ran a red light can
come in as evidence of a car accident, but it is not going to
come in to show a car ran a red light.
d. What counts as diagnosis? broadly interpreted to cover both the
statements made before you get treatment and statements to doctors
that are diagnosing you for purposes of litigation.
3. Examples:
a. United States v. Iron Shell (8th Cir. 1980) (victims motive in making
statements regarding the rape was for no purpose other than to receive
medical treatment; all statements were within the rule because they
were related to her physical condition; it is enough that the information
eliminated potential physical problems from the doctors examination).
v. FRE 803(5): Recorded Recollection A memorandum or record concerning a
matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, shown to have been
made or adopted by the witness when the matter was fresh in the witness
memory and to reflect that knowledge correctly. If admitted, the memorandum or
record may be read into evidence but may not itself be received as an exhibit
unless offered by an adverse party.
1. Application:
a. There is a delayed cross-examination element because someone has to
vouch for the statement.
b. Buss: Awkward fit with FRE 804 because the declarant here has to be
able to testify, and FRE 804 requires that declarant be unavailable.
c. If admitted as an exhibit, the jury may be allowed to have it with them
while they deliberate.
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d. Do not confuse this exception with the technique known as Present
Recollection Refreshed (FRE 612) where there is no hearsay issue
because the document (a written out-of-court statement) is not
introduced into evidence.
2. Example:
a. Ohio v. Scott (Ohio 1972) (the admission of the girlfriends signed
statement as past recollection recorded did not violate the s 6th
Amendment right of confrontation, including the opportunity of crossexamination).
i. Double Hearsay How do we get the second statement in
once her statement gets in as past recollection recorded?
through the admissions doctrine.
vi. FRE 803(6): Records of Regularly Conducted Activity A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the testimony of
the custodian or other qualified witness, or by certification that complies with Rule
902(11), Rule 902(12), or a statute permitting certification, unless the source of the
information or the method or circumstances of preparation indicate lack of
trustworthiness. The term business as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every kind, whether or
not conducted for profit.
1. Policy Arguments:
a. Trustworthiness Business records are likely to be accurate since
they are made for the purpose of running an enterprise rather than for
some purpose in litigation.
b. Necessity Because of the amount of detail that goes into these
records, it is hard to get similar information out of a declarant.
2. Application:
a. Business records often involve multiple hearsay or hearsay within
hearsay, but if all the declarants in a multiple chain of hearsay had a
business duty to report the contents of their statements, then the
requirements of the business records exception are satisfied.
b. Definition of business is broad can be a criminal or charitable
organization.
vii. FRE 803(7): Absence of Entry in Records Kept in Accordance With the
Provisions of Paragraph (6) Evidence that a matter is not included in the
memoranda, reports, records, or data compilations, in any form, kept in accordance
with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence
of the matter, if the matter was of a kind of which a memorandum, report, record,
or data compilation was regularly made and preserved, unless the sources of
information or other circumstances indicate lack of trustworthiness.
viii. FRE 803(8): Public Records and Reports Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth (A) the
activities of the office or agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to report, excluding, however,
in criminal cases matters observed by police officers and other law enforcement
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ix.
x.

xi.

xii.

Tracy Lemke
personnel, or (C) in civil actions and proceedings and against the Government in
criminal cases, factual findings resulting from an investigation made pursuant to
authority granted by law, unless the sources of information or other circumstances
indicate lack of trustworthiness.
1. Policy Argument:
a. These are exactly like business records when their topic is the internal
workings of a part of the government and are therefore likely to be
reliable because the organization that makes them also uses them in its
day-to-day work.
b. The exception under subsection (B) is limited because the interest that
law enforcement personnel have in obtaining convictions might give
them an incentive to falsify records.
2. Examples:
a. Types of documents covered by the rule would include employment
and personnel records.
3. Differences from Business Records:
a. Record does not have to be routinely maintained.
b. Record does not have to be recorded contemporaneously (though this
will factor into trustworthiness).
4. Application:
a. Law Enforcement Personnel Defined Courts have given varied
interpretations as to who qualifies as law enforcement personnel.
Obviously police officers are included, but there are conflicting
judicial opinions regarding someone like a clerk in a police department
property office.
b. For a helpful chart breaking down the categories and results under
FRE 803(8), see p. 112 in the Hearsay Handout.
c. Under subsection (B), it is highly questionable whether keeping such
material out of the criminal s case is supportable on grounds of
policy, and whether it is constitutionally sound.
FRE 803(9): Records of Vital Statistics Records or data compilations, in any
form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a
public office pursuant to requirements of the law.
FRE 803(10): Absence of Public Record or Entry To prove the absence of a
record, report, statement, or data compilation, in any form, or the nonoccurrence or
nonexistence of a matter of which a record, report, statement, or data compilation, in
any form, was regularly made and preserved by a public office or agency,
evidence in the form of a certification in accordance with Rule 902, or testimony,
that diligent search failed to disclose the record, report, statement, or data
compilation, or entry.
FRE 803(11): Records of Religious Organizations Statements of births,
marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage,
or other similar facts of personal or family history, contained in a regularly kept
record of a religious organization.
FRE 803(12): Marriage, Baptismal, and Similar Certificates Statements of
fact contained in a certificate that the maker performed a marriage or other
ceremony or administered a sacrament, made by a clergyman, public official, or
other person authorized by the rules or practices of a religious organization or by law
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xiii.
xiv.

xv.

xvi.

xvii.
xviii.

xix.

xx.

xxi.
xxii.

Tracy Lemke
to perform the act certified, and purporting to have been issued at the time of the
act or within a reasonable time thereafter.
FRE 803(13): Family Records Statements of fact concerning personal or
family history contained in family Bibles, genealogies, charts, engravings on rings,
inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
FRE 803(14): Records of Documents Affecting an Interest in Property The
record of a document purporting to establish or affect an interest in property, as
proof of the content of the original recorded document and its execution and
delivery by each person by whom it purports to have been executed, if the record is
a record of a public office and an applicable statute authorizes the recording of
documents of that kind in that office.
FRE 803(15): Statements in Documents Affecting an Interest in Property A
statement contained in a document purporting to establish or affect an interest in
property if the matter stated was relevant to the purpose of the document, unless
dealings with the property since the document was made have been inconsistent
with the truth of the statement or the purport of the document.
FRE 803(16): Statements in Ancient Documents Statements in a document in
existence twenty years or more the authenticity of which is established.
1. Policy Argument:
a. It is very unlikely that the declarant would have been lying in a way
intended to influence the outcome of a trial that occurs 20 years or
more after the declarants statement.
FRE 803(17): Market Reports, Commercial Publications Market quotations,
tabulations, lists, directories, or other published compilations, generally used and
relied upon by the public or by persons in particular occupations.
FRE 803(18): Learned Treatises To the extent called to the attention of an
expert witness upon cross-examination or relied upon by the expert witness in
direct examination, statements contained in published treatises, periodicals, or
pamphlets on a subject of history, medicine, or other science or art, established as a
reliable authority by the testimony or admission of the witness or by other expert
testimony or by judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.
FRE 803(19): Reputation Concerning Personal or Family History Reputation
among members of a persons family by blood, adoption, or marriage, or among a
persons associates, or in the community, concerning a persons birth, adoption,
marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage,
ancestry, or other similar fact of his personal or family history.
FRE 803(20): Reputation Concerning Boundaries of General History
Reputation in the community, arising before the controversy, as to boundaries of
or customs affecting lands in the community, and reputation as to events of general
history important to the community or State or nation in which located.
FRE 803(21): Reputation As to Character Reputation of a persons character
among associates or in the community.
FRE 803(22): Judgment of Previous Conviction Evidence of a final judgment,
entered after a trial or upon a plea of guilty (but not upon a plea of nolo
contendere), adjudging a person guilty of a crime punishable by death or
imprisonment in excess of one year, to prove any fact essential to sustain the
judgment, but not including, when offered by the Government in a criminal
prosecution for purposes other than impeachment, judgments against persons
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other than the accused. The pendency of an appeal may be shown but does not
affect admissibility.
xxiii. FRE 803(23): Judgment As to Personal, Family, or General History, or
Boundaries Judgments as proof of matters of personal, family or general history, or
boundaries, essential to the judgment, if the same would be provable by evidence of
reputation.
xxiv. FRE 803(24) [Transferred to Rule 807]
4. Hearsay Exceptions (Declarant Unavailable) (Rule 804)
a. General Idea:
i. Statements within these exceptions are thought to be good enough to be admitted, but
not so good as live testimony by the declarant.
b. Policy Argument:
i. These exceptions are based on the necessity to use the out-of-court statements rather
than on the likely truthfulness of the out-of-court declarant; thus, there must be proof
that the declarant is unavailable.
c. Basic Rules:
i. FRE 804(a): Definition of Unavailability Unavailability as a witness includes
situations in which the declarant: (1) is exempted by ruling of the court on the
ground of privilege from testifying concerning the subject matter of the declarants
statement; or (2) persists in refusing to testify concerning the subject matter of the
declarants statement despite an order of the court to do so; or (3) testifies to a lack
of memory of the subject matter of the declarants statement; or (4) is unable to be
present or to testify at the hearing because of death or then existing physical or
mental illness or infirmity; or (5) is absent from the hearing and the proponent of
statement has been unable to procure the declarants attendance (or in the case of a
hearsay exception under subdivision (b)(2), (3), or (4), the declarants attendance
or testimony) by process or other reasonable means. A declarant is not
unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or
absence is due to the procurement or wrongdoing of the proponent of a statement
for the purpose of preventing the witness from attending or testifying.
1. Application:
a. The trial judge determines whether the declarant is unavailable,
meaning the question is one of admissibility under FRE 104(a).
United States v. Bell (2d Cir. 1974).
2. Question of Relationship between FRE 804 and FRE 801(d)(1):
a. For FRE 801(d)(1), is the declarant available for cross-examination?
And for FRE 804, is the declarant unavailable, so that statements about
underlying events can come in?
i. Can find both at same time OR
ii. Can find FRE 804, but not available under 801(d)(1).
3. Examples:
a. Claim of Privilege In criminal cases, often witnesses invoke their 5th
Amendment privilege against self-incrimination. The Rule
contemplates an actual test: Declarant takes the stand, claims a
privilege, and the court sustains his position. Generally a party hoping
to take advantage of this form of unavailability cannot simply
represent that the declarant would claim a privilege if called. United
States v. Pelton (8th Cir. 1978).
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b.

c.

d.

e.

f.

i. BUT where one of several s wishes to offer a statement by

another as a declaration against interest, for example,
declarants privilege against self-incrimination entitles him not
even to be called as a witness; hence he may be viewed as
unavailable without being called to the stand for a ruling.
United States v. Gossett (11th Cir. 1989).
Refusal to Testify When a declarant declines to answer, the Rule
contemplates a threat of contempt. United States v. MacCloskey (4th
Cir. 1982).
i. BUT see United States v. Boulahanis (7th Cir. 1982) (court
did not threaten contempt, but witness was unavailable where
he refused to testify in fear of being killed, a fate that befell
another involved in shakedown giving rise to this prosecution).
Lack of Memory The declarant testified that he could not remember
the robbery, although he had described it to a grand jury. The robbery
was the subject matter of his grand jury testimony, so he was
unavailable at trial. United States v. DiCaro (7th Cir. 1985).
i. Note: The DiCaro case illustrated a bit of a paradox. The
same witness was at once subject to cross-examination under
FRE 801(d)(1) and yet unavailable under FRE 804(a). This
is true because a person may remember making his statement
well enough to be cross-examinable about it, even though he
has forgotten the underlying events.
Death, Illness, Infirmity A minor ailment from which speedy
recovery is expected should not satisfy the requirement, even though
the declarant cannot attend trial on a given day, since it should be
possible to adjourn the proceedings to allow time for recovery. But a
serious illness of uncertain prognosis is likely to be enough.
United States v. Faison (3d Cir. 1982) (a trial court must consider
all relevant circumstances, including: the importance of the absent
witness for the case; the nature and extent of cross-examination in the
earlier testimony; the nature of the illness; the expected time of
recovery; the reliability of the evidence of the probable duration of the
illness; any special circumstances counseling against delay).
Mental Condition The modern view is that insanity does not
disqualify one from giving evidence. However, in some settings,
mental condition makes a witness unavailable to testify.
Particularly in prosecutions for crimes against children involving
sexual abuse or other physical mistreatment, the victim may not be
able to cope with testifying in court, creating a form of
psychological or medical unavailability. Most states have statutes
that permit the use of depositions by children in this situation, and they
may authorize children to testify from another room by use of video
monitor. Congress enacted a detailed statute on this subject: 28
U.S.C. 3509.
Beyond Subpoena Power Sometimes a declarant is beyond the
subpoena power of the court. Even a witness beyond reach of
subpoena is not necessarily unavailable, for other reasonable means
may secure his presence. Occasionally, courts expect parties simply to
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invite the declarant to attend, and in the case of the government in
criminal cases, to offer to pay travel expenses. Government of
Virgin Islands v. Aquino (3d Cir. 1967).
g. Cannot Be Found Sometimes a witness who is physically within
range of subpoena simply cannot be found, and the question arises
whether the party seeking to offer his statement under FRE 804(b) has
tried hard enough to serve him. See Perricone v. Kansas City S.R.R.
(5th Cir. 1980) ( should not have introduced testimony by witness in
prior trial; did not subpoena witness, and located him at his place
of work in same town where accident occurred; he had recently moved
from another town, but dialing his old telephone number would reach a
recording giving his new number; had not made a diligent search).
i. BUT FRE 804(a)(5) puts additional pressure on parties to
obtain deposition testimony by a declarant who might be
unavailable at trial. For the purposes of the exceptions listed in
FRE 804(b)(2) through (4), an unavailable witness is not one
whose attendance cannot be procured if his testimony in
some other form, i.e., a deposition, could be obtained.
h. Refusal to Grant Immunity A governments threat of prosecution
or its refusal to immunize a witness, thereby forcing the witness to
claim his privilege against self-incrimination and not testify, is
probably not considered a procurement of unavailability which would
prevent use of the FRE 804(b) exceptions.
i. Policy Argument:
1. The power to grant immunity is viewed as a
government tool administered by the U.S. Attorney.
ii. BUT some decisions hint that sometimes a refusal to immunize
might be viewed as abuse. United States v. Morrison (3d Cir.
1976).
iii. BUT courts might play a role in deciding whether immunity
should be granted. United States v. Herman (3d Cir. 1978).
ii. FRE 804(b)(1): Former Testimony Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition taken in compliance
with law in the course of the same or another proceeding, if the party against whom
the testimony is now offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.
1. Preliminary Hearing Testimony See Ohio v. Roberts (1980) (admitting
preliminary hearing testimony by a witness who had left the state and
disappeared, where the defense had actually called her at the preliminary
hearing and engaged in the functional equivalent of cross-examination).
iii. FRE 804(b)(2): Statement Under Belief of Impending Death In a prosecution
for homicide or in a civil action or proceeding, a statement made by a declarant
while believing that the declarants death was imminent, concerning the cause or
circumstances of what the declarant believed to be impending death.
1. Policy Arguments:
a. Religious Time-honored belief that a dying person will not meet his
maker with a lie on his lips.
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b. Moral The belief that psychological forces incline a dying person
toward truthfulness.
c. Necessity There is obviously a good necessity argument available if
the declarant did in fact die.
2. Example:
a. Commonwealth v. Chamberlain (Pa. 1999) (in 2.5-second phone call
before dying, victim said call an ambulance Terry shot Greg and
me, admissible to identify as assailant, under exception for dying
declarations).
3. Application:
a. The exception embraces only those statements concerning the
cause and circumstances of impending death. It reaches not only
remarks identifying the assailant, but also descriptions of the accident
or catastrophe that befell the declarant. Probably it also embraces
descriptions of prior threats and quarrels, physical pain or sensations,
and matters inhaled, injected, or ingested.
b. Determining Belief of Imminent Death See Mattox v. United
States (1892) (relying on nature of wounds and advice by attending
physician that declarant had no chance to survive). See also State v.
Buggs (Minn. 1998) (seriousness of wounds, labored breathing, and
fact of death within two hours were sufficient circumstances from
which the trial court could infer that she had a firm belief in
impending death).
c. Trial Judge Is Arbiter See Commonwealth v. Cooley (Pa. 1975)
(question whether statement qualifies as a dying declaration is one of
law that is not within the province of the jury).
d. Personal Knowledge Required? See Shepard v. United States
(1933) (dying declaration admissible only if circumstances permit
inference that declarant had knowledge and should be excluded if
speaker expresses suspicion and conjecture) and State v. Wilks
(Mo. 1919) (statement that certain people hired the assailant
inadmissible as dying declaration because of lack of personal
knowledge).
i. BUT see Soles v. State (Fla. 1929) (admitting statement by
declarant shot in the back of the head identifying as his
assailant, without discussion of the personal knowledge issue).
e. How Imminent? See Shepard v. United States (1933) (Fear or
even belief that illness will end in death will not avail of itself to make
a dying declaration. There must be a settled hopeless expectation
that death is near at hand.).
iv. FRE 804(b)(3): Statement Against Interest A statement which was at the time
of its making so far contrary to the declarants pecuniary or proprietary interest,
or so far tended to subject the declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another, that a reasonable person in the
declarants position would not have made the statement unless believing it to be
true. A statement tending to expose the declarant to criminal liability and offered
to exculpate the accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.
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1. Policy Arguments:
a. A person is unlikely to state facts (or make statements) harming his
own interest unless they are true.
b. This exception is not about reliability, but about responsibility.
c. The final provision in the rule helps to overcome doubt about the
credibility of the inculpating statement.
2. Application:
a. Context Does Matter See Donovan v. Crisostomo (9th Cir. 1982)
(statements by Philippine workers that they had not worked much were
not against interest, when offered by employer in action by Secretary
of Labor seeking back pay, for a worker who might be sent back to the
Philippines could feel that it was in his interest to state he was paid
properly to avoid the wrath of his employer).
b. Conflicting Interests A single statement may further one interest
and impair another. In any such case, a court applying the exception
could either (a) exclude the statement on ground that conflicting
interests cancel each other out, or (b) determine whether the statement
was predominantly disserving or self-serving, and admit or exclude
accordingly. See Demasi v. Whitney Trust & Savings Bank (La.
App. 1937) (Demasi signed a damaging statement, which disserved
her interests, to gain access to the remaining balance of $70.17; since
there had already been an adverse judgment to her interests in the
missing $630 portion, it cannot fairly be said that, to the mind of
Demasi, that she lost anything by signing the statement; therefore, the
statement is not admissible as a declaration against interest).
c. One-Way Interest Where the interest of a declarant is to aim high,
his statement should be admissible to show the maximum; where the
interest of the declarant was to aim low, his statement should be
admissible to show the minimum. See Plisco v. United States (in IRS
jeopardy assessment suit, admitting memoranda by taxpayers to show
winnings but not losses; they had no incentive to overstate their daily
profit figures in order to increase their taxes, which the commissioner
could accept as minima, but did have an incentive to overstate their
daily loss, which commissioner could reject). See also Montgomery
v. Fay (W. Va. 1954) (in wrongful death claim, what decedent told
attorney to put on his tax return was admissible to show loss).
i. Policy Argument:
1. These statements seem reliable as proof of maximum or
minimum.
d. Circumstantially Adverse Facts A statement may fit the exception
without directly speaking of debts or property. See Gichner v.
Antonio Troiano Tile & Marble Co. (D.C. App. 1969) (a statement
is against pecuniary and proprietary interest when it threatens the loss
of employment, or reduces the chances for future employment, or
entails possible civil liability).
e. Declarants Understanding The exception only helps to pick out
reliable statements if declarant understood his own interests and how
the fact or statement could affect them. Hence courts exclude
statements uttered by persons who lack the necessary information. See
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Filesi v. United States (4 Cir. 1965) (in suit by taxpayer to recover
taxes previously assessed and paid, statement by deceased partner
admitting that dancing went on in the bar they ran was not against his
interest, partly because nothing indicated that he realized the possible
serious financial consequences to him which could arise from his
admission that dancing was permitted).
f. Effect of Later Events Some courts insist that the against-interest
requirement is not satisfied where a statement becomes damaging to
declarant in the light of later unexpected events. See Merritt v.
Chonowski (Ill. App. 1978) (in suit by car passenger alleging
dramshop liability, driver coming out of bar said he had consumed
some six mixed drinks which were strong; against-interest
requirement not satisfied because he spoke before the accident
occurred at which time he had no reason to believe that he was going
to become liable for an injury to another).
g. Conclusory Remarks Some courts treat declarations against interest
like admissions, allowing conclusory statements. See Ferrebee v.
Boggs (Ohio App. 1970) (truck drivers statement, I didnt mean to
kill your baby, it was all my fault, made to driver of car as ambulance
took both to hospital, admissible against widow of truck driver in her
suit for his wrongful death).
i. BUT see Carpenter v. Davis (Mo. 1968) (admitting first part
of exchange, [she] pulled right out in front, but excluding the
last part, wasnt your fault as opinion; opinions may be
admissions, but not declarations against interest).
h. Statements Against Social Interest The Rule does not embrace
statements tending to make the declarant an object of hatred, ridicule,
or disgrace. See United States v. Lemonakis (D.C. App. 1973)
(prisoner admitted in suicide note that he lied about ; declarants
interest against exposure to hatred, ridicule or disgrace, even if
translated to his surviving family was not sufficiently implicated).
i. Collateral Statements See Williamson v. United States (1994)
(co- made statements against his own penal interest which also
included statements against the ; FRE 804(b)(3) does not allow
admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory, i.e.,
collateral statements are inadmissible).
v. FRE 804(b)(4): Statement of Personal or Family History (A) A statement
concerning the declarants own birth, adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other similar fact of
personal or family history, even though declarant had no means of acquiring
personal knowledge of the matter stated; or (B) a statement concerning the
foregoing matters, and death also, of another person, if the declarant was related
to the other by blood, adoption, or marriage or was so intimately associated with
the others family as to be likely to have accurate information concerning the
matter declared.
vi. FRE 804(b)(5) [Transferred to Rule 807]
th

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vii. FRE 804(b)(6): Forfeiture By Wrongdoing A statement offered against a party
that has engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness.
5. Hearsay Residual (Catchall) Exception (Rule 807)
a. Basic Rule:
i. FRE 807 A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not excluded by the
hearsay rule, if the court determines that (A) the statements is offered as evidence of
a material fact; (B) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and the interests of
justice will best be served by admission of the statement into evidence. However, a
statement may not be admitted under this exception unless the proponent of it
makes known to the adverse party sufficiently in advance of the trial or hearing to
provide the adverse party with a fair opportunity to prepare to meet it, the proponents
intention to offer the statement and the particulars of it, including the name and
address of the declarant.
b. History:
i. This Rule was created in 1997 by consolidating the Rules previously set out as FRE
803(24) and FRE 804(b)(5).
c. General Idea:
i. The Rule authorizes courts to admit hearsay that does not fit any of the categorical
exceptions if it is nevertheless trustworthy (indicia of reliability; reliability and
sincerity) and necessary.
d. Application:
i. Proof of Exonerating Facts/Trustworthiness Factors Child care provider Weaver
was charged with murder and child endangerment. After a court trial, she was
convicted of first-degree murder. The autopsy had shown that the child had both old
and recent injuries, including those consistent with shaken baby syndrome. The
moved for a new trial based on statements by 3 older women that the child had
actually hit her head on a coffee table at home on the morning she died, before being
placed in Weavers care that day. The women recounted a statement made by the
mother, Tessia, who worked at the Hardees where they were having coffee. None of
the affiants could absolutely identify the date. The mother claimed that she would
testify that her daughter did not hit her head on the coffee table, and that she never
made the statement to the women. The court held that the facts in the record
established the trustworthiness of the affidavits; therefore, the affidavits and
testimony of the women were admissible hearsay evidence. The court stated that
the factors to consider in making a trustworthiness determination under the
Rule include: the declarants propensity to tell the truth, whether the alleged
statements by declarant were made under oath, assurance of declarants personal
knowledge, the time lapse between the alleged event and the statement by declarant
concerning the event, and the motivations of declarant to make the alleged statements.
Additional circumstances to consider include corroboration, reaffirming or recanting
the statement by the declarant, credibility of the witness reporting the statement, and
availability of the declarant for cross-examination. These factors are not an
exclusive list. Note that the statement would not have been admissible as an againstinterest exception because Tessia testified at trial. State v. Weaver (Iowa 1996).
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ii. Near Miss Theory Some courts subscribe to the near miss theory, under which
a statement that almost fits one of the categorical exceptions cannot be admitted
under the catchall. See United States v. Vigoa (D.C.N.J. 1987) (refusing to admit
grand jury testimony that did not fit former testimony exception because there was no
opportunity to cross-examine, and concluding that catchall could not apply to
statements that were covered but excluded by other exceptions).
1. BUT most courts reject this theory. See United States v. Clarke (4th Cir.
1993) (admitting testimony from suppression hearing in related case, and
rejecting near miss theory). Typical situation is an unavailable witness and
prior grand jury testimony the catchall exception will typically be used to
get it in.
iii. Proof of Both Exonerating Facts and Confession Where a third-party statement
not only asserts facts that exculpate the but actually is a confession to the crime,
courts are only sometimes willing to apply the catchall. See United States v. Hall (in
kidnap-rape-murder trial, excluding confession by G, which did not fit catchall; G
appeared to be psychotic, confessing to any crime about which he was questioned,
lacked knowledge of pertinent facts, and there was no corroboration). See also State
v. Walker (Md. 1997) (refusing to apply catchall to statement by girlfriend of
indicating that he confessed to armed robbery; the two had married, and she refused
to testify against him; her unavailability was not an extraordinary circumstance
justifying use of catchall).
1. BUT see Demby v. State (Del. 1997) (in murder trial, error to exclude
videotaped statement by Lehman reciting confession in which Flonnory said
he, and not , shot victim; Lehman and Flonnory invoked privilege against
self-incrimination and refused to testify; Flonnorys statement fit againstinterest exception, and Lehmans videotaped recitation of Flonnorys
statement fit catchall).
iv. Child Abuse Prosecutions Courts often use the catchall to admit statements by
child victims describing abuse. See United States v. Dunford (4th Cir. 1998)
(admitting statements by daughters of describing abuse; court stresses serious
nature of statements and notes that they were repeated and consistent). See also
State v. Rojas (Iowa 1994) (admitting videotaped interview between ten-year-old
victim and social worker under state catchall).
1. Courts have developed a list of factors that bear on the determination of
trustworthiness, including the following: Precocious knowledge and ageappropriate language; behavior changes; general demeanor and affect, and
particular indications of pain or emotional upset; spontaneity; the presence or
absence of bias or other motives on the part of the speaker or the reporting
witnesses; signs of tension or disagreement between the child and the person
accused of abuse; the training and techniques of people who talk to the child;
the number and consistency of repetitions of the basic story make a difference;
the character of the child.
2. Statutory reforms in many states provide multiple means for putting before
the factfinder what the young victims of abuse have to say, including
videotaped depositions and remote testimony via a television monitoring
system. These statutes have regularly withstood constitutional challenges.
Thomas v. Deleware (Del. 1999).

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v. Grand Jury Testimony of Recalcitrant Witness See United States v. Carlson
(8th Cir. 1976) (admitting grand jury testimony by witness who claimed 5th
Amendment at trial). This would also apply to a grand jury witness who had
disappeared.
1. BUT see United States v. Dent (7th Cir. 1993) (error to admit grand jury
testimony; not trustworthy in this case). The opinions focus on
trustworthiness in the particular case, and often stress corroboration or the fact
that the grand jury testimony dealt with only some small issue in the trial, and
the witness appeared to have clear knowledge and no personal stake in one
version of events rather than another. One other factor is a strong aroma
that the is behind the fact that the grand jury witness does not testify.
a. BUT the SC has now held that corroboration does not count, for
purposes of the Confrontation Clause, when hearsay is offered under
the catchall. Idaho v. Wright (1990).
2. Similar Uses:
a. United States v. Shaw (4th Cir. 1995) (testimony given in prior trial of
alleged co-offender).
b. United States v. Clarke (4th Cir. 1993) (testimony given in
suppression hearing).
vi. Other Examples:
1. United States v. Bradley (7th Cir. 1998) (admitting statement by s wife to
detective).
2. Brookover v. Mary Hitchcock Memorial Hospital (1st Cir. 1990) (admitting
statements by hospital patient to mother describing slip-and-fall accident).
3. Rock v. Huffco Gas & Oil Co. (5th Cir. 1991) (refusing to admit statement by
victim who had since died of a heart attack, describing accident).
4. United States v. Trenkler (1st Cir. 1995) (error to admit government database
to show that certain prior bombing was similar to the bombing in this case).
e. Technical Requirements of the Catchall:
i. Material Fact See Huff v. White Motor Corp. (7th Cir. 1979) (materiality
simply states a requirement of relevance).
ii. More Probative The question becomes does this mean that a statement offered
under the catchall must be more probative on the point which it tends to prove than all
other evidence on that point? See United States v. Mathis (catchall did not reach
statements by s former spouse, who refused to testify on ground of privilege but
said she would if ordered; her testimony would be more probative).
1. BUT argue that, yes, we want to encourage parties to look for other evidence
that might be more probative to replace the hearsay, but this does not mean
that it stays out when there is some distinctly different piece of evidence that
is strong.
iii. Reasonable Efforts To Get Better Evidence? See Stokes v. City of Oklahoma
(8th Cir. 1994) (in age discrimination suit against police department, refusing to apply
catchall to statement by deceased deputy police chief, whose death had been expected
because he was ill, and who could have been deposed). See also United States v.
Kim (D.C. Cir. 1979) (excluding telex from Korean bank describing transactions
because never offered business records or explained why they could not be
procured through reasonable efforts). See also United States v. Medico (2d Cir.
1977) (approving statements by two eyewitnesses, one of whom saw getaway car and
called out its license number to the other who related the information to a bank
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employee, where government had made serious efforts to locate the witnesses, but
to no avail).
iv. Interests of Justice Captures concepts of fairness and worries about incentive
effects. See United States v. Munoz (11th Cir. 1994) (admitting bank deposit slips
under catchall; requirement to serve interests of justice essentially restates FRE 102,
and aim includes providing speedy, inexpensive, and fair trial designed to reach the
truth). See also State v. Walker (Md. 1997) (catchall did not reach out-of-court
statement saying had confessed; fact that speaker became wife of before trial,
making her unavailable as witness because she invoked privilege, was not an
exceptional circumstance justifying application of catchall to what she said before).
See also United States v. Barlow (6th Cir. 1982) (admitting grand jury testimony by
woman whom later married and who claimed spousal testimonial privilege at trial;
marriage was not sham, but court could property consider s role in making her
unavailable).
v. Notification Requirement Can a party invoke the catchall for the first time after
trial begins? See United States v. Bachsian (9th Cir. 1993) (failure to give pretrial
notice is excused if opponent had chance to attack trustworthiness of evidence;
defense knew government intended to introduce certain documents, and only reason
government did not give notice was that it expected that court would admit them as
business records).
1. BUT see United States v. Ruffin (2d Cir. 1978) (catchall exception may be
invoked only if pretrial notice given, even though government was unaware of
need to resort to exception until after testimony was admitted and trial court
called a recess in order to permit defense to prepare to meet the governments
proof).
6. Hearsay & The Constitution
a. Constitution As Bar Against Hearsay:
i. General Idea:
1. The 6th Amendments first clause provides the Confrontation Clause which
generally entitles the accused in a criminal prosecution to be there when
witnesses testify against him, and to cross-examine. This clause has been
thought to bear directly on the use of hearsay.
ii. Seminal Modern Cases:
1. California v. Green (1970) The Court rejected challenges to the use of
statements by a witness who seemed conveniently forgetful at trial but
previously incriminated the in a conversation with a police officer and in
s preliminary hearing. The case suggested that two kinds of statements
pass muster those subject to prior cross-examination because they were
made in proceedings where had a lawyer who tested them, and those
subject to later cross-examination because the declarant testifies at trial and
is questioned there.
2. Dutton v. Evans (1970) The Court rejected a defense challenge to an outof-court statement that was never tested by cross-examination because
declarant never testified. Broadly read, Dutton says the Confrontation
Clause is satisfied if a statement possesses indicia of reliability,
including factors similar to those underlying some traditional hearsay
exceptions. The Court stressed that the speaker had no apparent reason to
lie and that his statement was spontaneous and against his penal interest.
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iii. Confrontation Theories:
1. Minimalist Theory The Clause speaks only to live testimony and has
nothing to say about out-of-court statements.
2. Production Theory The Clause requires the prosecutor to produce an
available declarant in preference to his out-of-court statement, but has nothing
to say about statements by people who are unavailable whose presence or
testimony the prosecutor cannot obtain.
3. Reliability Theory The Clause sets a constitutional standard of reliability
for hearsay statements offered against the accused that works independently of
the hearsay doctrine.
4. Centrality Theory The Clause allows the use of hearsay statements on
peripheral points or as corroborative or circumstantial proof, but not as central
evidence going to the heart of the prosecutors case.
5. Procedural Rights Theory Modern scholars have begun to argue that the
Clause does not bar hearsay as such, but should be read to prevent the state
from building its case against people accused of crime by gathering out-ofcourt statements and offering them in lieu of live testimony.
iv. Uncross-Examined Statements and Firmly Rooted Hearsay Exceptions:
1. In the trial of Roberts for possessing stolen credit cards and checks, the state
offered preliminary hearing testimony by Isaacs, who had testified at the
earlier hearing when called by the defense. During that testimony, Isaacs said
she knew Roberts and that she let him use her apartment for several days.
Despite defense efforts, Isaacs did not admit that she gave him the checks and
credit cards without telling him she did not have permission. A year later,
when the case went to trial, the prosecutor could not locate Isaacs. The trial
court admitted the testimony, but the Ohio Supreme Court agreed with the
appellate court that the earlier testimony was inadmissible, even though Isaacs
was unavailable, because the mere opportunity to cross-examine at the
preliminary hearing did not satisfy the Confrontation Clause. The SC
reversed the Supreme Court of Ohio. [W]hen a hearsay declarant is not
present for cross-examination at trial, the Confrontation Clause normally
requires a showing that he is unavailable. Even then, his statement is
admissible only if it bears adequate indicia of reliability. Reliability can
be inferred without more in case where the evidence falls within a firmly
rooted hearsay exception. Ohio v. Roberts (1980). Roberts seems to
adopt a two-prong approach that combines the Production and Reliability
Theories:
a. First Prong: Unavailability The Court dropped an escape clause
into a footnote demonstrating that unavailability is not always
required. For example, the footnote itself says the prosecutor need
not show unavailability if the utility of trial confrontation is
remote. In 1985, the Court implied a narrowing of Roberts in
United States v. Inadi (1985) (Roberts must be read consistently
with the question it answered, the authority it cited, and its own facts,
which suggest that it simply reaffirmed a longstanding rule applying
unavailability analysis to prior testimony). And in 1992, the Court
hinted that the other Roberts qualifier statements are reliable if they
fit a firmly rooted exception trumps the unavailability requirement
altogether. See White v. Illinois (1992) (agreeing with Inadi in
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concluding that statements fitting two firmly rooted exceptions, those
for excited utterances and statements for purposes of obtaining
medical services, have sufficient guarantees of reliability to satisfy
the Confrontation Clause; adversarial testing would add little, so
unavailability is not required). Thus, at the very least, the
unavailability prong continues to apply to the prior testimony
exception, which is important in criminal cases.
i. Policy Argument:
1. This prong of the test relies on a necessity argument.
b. Second Prong: Reliability and Firmly Rooted Exceptions
Which hearsay exceptions are firmly rooted?: The SC has held
or strongly implied that the exceptions for coconspirator statements,
excited utterances, statements for medical diagnosis or treatment,
business records, and dying declarations are firmly rooted, and modern
authority supports the view that the exceptions for agents admissions
and public records are firmly rooted.
i. BUT the SC decided that the against-interest exception is not
firmly rooted, at least as applied to third-party confessions
implicating the accused. Lilly v. Virginia (1999).
ii. BUT this is problematic with the coconspirator exception,
which is not grounded on the notions of reliability.
iii. BUT Bourjaily said that you could not bootstrap in the
common law, and the rules have changed from the common
law, so that weakens this firmly rooted justification.
v. New Hearsay:
1. The s were prosecuted for child abuse on their two daughters. The crime
came to light when the older daughter told a woman friend that the s abused
both her and her sister. At trial, the older child testified. However, the
younger child did not testify because the judge concluded on the basis of voir
dire that she could not communicate with the jury. But the trial court let Dr.
Jambura, the examining physician, describe what she said, invoking the
catchall exception. The doctor testified that he asked her a number of
questions. The Idaho Supreme Court concluded that admitting these
statements violated the Confrontation Clause. The SC agreed and reversed the
conviction. After noting that the residual hearsay exception was not firmly
rooted for Confrontation Clause purposes, the Court held that
particularized guarantees of trustworthiness must be shown from the
totality of the circumstances, but the relevant circumstances include only
those that surround the making of the statement and that render the
declarant particularly worthy of belief. To be admissible under the
Confrontation Clause, hearsay evidence used to convict a must possess
indicia of reliability by virtue of its inherent trustworthiness, not by
reference to other evidence at trial. Idaho v. Wright (1990).
b. Constitution As Grounds to Admit:
i. Chambers v. Mississippi (1973) It can be a Due Process violation for the
prosecution to prohibit the to use out-of-court statements that are particularly
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PRIVILEGES
1. Introduction (Rule 501)
a. Basic Rule:
i. FRE 501 Except as otherwise required by the Constitution of the United States or
provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to
statutory authority, the privilege of a witness, person, government, State, or political
subdivision thereof shall be governed by the principles of the common law as they
may be interpreted by the courts of the United States in the light of reason and
experience. However, in civil actions and proceedings, with respect to an element of
a claim or defense as to which State law supplies the rule of decision, the privilege
of a witness, person, government, State, or political subdivision thereof shall be
determined in accordance with State law.
b. Policy Arguments:
i. Humanistic Privileges are intended to protect certain societal relationships and
values, even though such protection may impose significant costs upon the litigation
process.
ii. Instrumental In the attorney-client and psychotherapist-patient contexts, we are
assessing a relationship that depends on an understanding about confidentiality in
order to be effective utilitarian rationales.
c. Goals:
i. To encourage the free flow of communication in various relationships.
ii. To prevent governmental interference with certain favored relationships, such as
marriage.
iii. To further the effective functioning of government by limiting the access of litigants
to state secrets or confidential communications by public officials.
d. Scope:
i. The scope of privilege law determines the balance struck between the interests of
society in maintaining zones of privacy in human relationships and the right of
litigants to obtain evidence needed to prosecute claims or defend themselves in court.
e. Evidentiary Privileges vs. Ethical Obligation of Confidentiality:
i. As a practical matter, the ethical obligation of confidentiality imposed by a profession
may provide more protection for privacy than an evidentiary privilege, because a
privilege can generally be asserted only in a judicial, legislative, or administrative
proceeding. Whereas the duty of confidentiality imposes a more general proscription
against disclosure by the professional person in any setting.
ii. In the absence of a privilege, a professional person who is called as a witness may be
judicially compelled to disclose confidential communications from a client or patient,
regardless of the ethical standards of confidentiality adopted by that profession.
iii. The ethical codes of most professions specifically allow disclosure by law or when
compelled by court order.
f. General Ideas:
i. Privileges remain the most significant area of evidence law not codified by the
Federal Rules of Evidence.
ii. Congress took rulemaking power away from the Supreme Court with respect to
evidentiary privileges.
iii. Most states with evidence codes modeled after the FRE have codified their rules of
privilege, and there is considerable variation from state to state regarding what
privileges are recognized and the scope of those privileges.
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iv. FRE 501 defers to state law only in diversity cases and other cases where state law
supplies the rule of decision.
v. Waiving the privilege is revealing information that you are entitled to protect you
cannot later reinstate the privilege.
2. Attorney-Client Privilege
a. Policy Arguments:
i. Instrumental Relates to the effective performance of the attorneys functions.
ii. Humanistic Relates to the preservation of other human values.
b. Criticisms:
i. Bentham If the attorney-client confidence is permitted to be violated, and if this be
known, the consequence will be that no such confidence will be reposed. What then
will be the consequence? That a guilty person will not in general be able to derive
quite so much assistance from his law advisor, in the way of concerting a false
defense, as he may do at present.
ii. McCormick If one were legislating for a new commonwealth, without history or
customs, it might be hard to maintain that a privilege for lawyer-client
communications would facilitate more than it would obstruct the administration of
justice.
iii. Wigmore Its benefits are all indirect and speculative; its obstruction is plain and
concrete. . . . It is worth preserving for the sake of a general policy, but it is
nonetheless an obstacle to the investigation of the truth. It ought to be strictly
confined within the narrowest possible limits consistent with the logic of its
principle.
iv. The application to lawyers is somewhat old-fashioned the lawyer as a trusted
counselor; this seems outdated in todays world.
c. Defenses:
i. Wigmore [I]t must be repugnant to any honorable man to feel that the confidences
which his relation naturally invites are liable at the opponents behest to be laid open
through his own testimony. This double-minded attitude would create an unhealthy
moral state in the practitioner.
ii. Prof. Louisell The practitioner would know that he was perverting the function of
counseling. Perhaps the notion is as well put by Francis Bacon as anyone: The
great Truste, between Man and Man, is the Truste of Giving Counsell.
iii. There is considerable historical inertia.
iv. Essential to the framework of our adversarial system, at least in the big-picture.
v. As an attorney, you can do a better job of representing people if you have more
information.
vi. The privilege creates trust in the legal system/rule of law.
vii. Fosters free flow of information; otherwise, even innocent people will be worried
about revealing information because it may somehow be used against them.
d. General Application Ideas:
i. In civil cases, a can call the as a witness during the s case-in-chief and attempt
to establish his case based on the s own testimony. Even if the discussed the
underlying facts with his attorney, which he presumably does, he may not invoke the
attorney-client privilege with respect to questions about the underlying facts.
ii. The privilege affords much less protection than people commonly think:
1. It is not a way to shield facts, rather it shields access to the communications
themselves.
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2. By sharing facts with a lawyer, a will actually find it much harder to hide
them in discovery.
iii. Who holds the privilege? The client, not the lawyer.
e. Basic Rule:
i. The privilege applies only to confidential communications made for the purpose
of rendering professional legal services to the client; the communications can be
either lawyer to client or client to lawyer.
f. Professional Services:
i. Often attorneys are consulted for more than legal advice; they may also be asked
questions soliciting business, financial, or personal advice. The question then
becomes: How much of what attorneys do on behalf of their clients is protected
by the attorney-client privilege?
ii. Application:
1. Attorney As Officer of the Court If one of the attorneys functions is to
notify his client as to the time and place of trial (and the client does not
appear), the fact of his notifying him or not is not privileged. United States v.
Woodruff (E.D. Pa. 1974) (communications between counsel and about
trial date do not involve the subject matter of s legal problems; they are
non-legal in nature and counsel is simply performing a notice function).
a. BUT this may concern us worried about slicing and dicing lawyer
functions.
b. BUT in some states which have adopted proposed FRE 503 (which
extends the privilege to the provision of legal services rather than
merely legal advice), courts have sometimes found the issue harder.
2. Activities Not Considered Professional Legal Services See United States
v. Lawless (7th Cir. 1983) (accounting); United States v. Palmer (9th Cir.
1976) (shipping agent); Canaday v. United States (8th Cir. 1966) (scrivener);
Diamond v. City of Mobile (S.D. Ala. 1978) (investigator); J.P. Foley & Co.
v. Vanderbilt (S.D.N.Y. 1974) (business agent; negotiator); Federal Savings
& Loan Insurance Corp. v. Fielding (D. Nev. 1972) (business partner);
Jones v. Smith (Ga. 1949) (attesting witness).
3. Preparation of Tax Returns Most courts hold that the privilege does not
apply to matters intended for inclusion in the return, on the theory that
such information was not intended to be kept confidential. However, most
courts also hold that tax planning advice, as distinguished from the
mechanical preparation of income tax returns, is privileged. See United
States v. Willis (S.D. Iowa 1983).
4. Turning Over Records Matters that are otherwise protected do not become
unprotected by turning them over to your lawyer; works in reverse, too.
5. Distinguishing Business and Legal Advice Most courts require that the
attorneys work be primarily legal before the privilege will attach. See
Sedco International S.A. v. Cory (8th Cir. 1982).
g. Communications:
i. The question is: What falls within the scope of communications from the
client?
ii. Application:
1. Observations on Clients Mental Capacity See Clanton v. United States
(5th Cir. 1974) (lawyer was properly permitted to testify that his client was
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3.

4.

5.

6.
7.

8.

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competent to stand trial, where the testimony did not relate to private,
confidential, communications with his client).
a. BUT see Gunther v. United States (D.C. Cir. 1956) (lawyer should
not have been allowed to testify that his client was competent to stand
trial, for necessarily a lawyer who so testifies may also be asked for
the factual data upon which he premised his opinion, which would
open up the entire relationship, violating both the privilege and s
right of counsel).
Observations on Clients Physical Appearance See United States v.
Kendrick (4th Cir. 1964) (dictum indicating that physical characteristics of
the client, such as his complexion, his demeanor, his bearing, his sobriety and
his address, are not privileged, for such matters are observable by anyone
who talked with the client).
Observations on Clients Lifestyle See In re Grand Jury Proceedings
(Chesnoff) (9th Cir. 1994) (no privilege for attorneys observations about his
clients expenditures during a European cruise, his income-producing
activities, and his lifestyle).
Statements By Attorney to Client Compare Wells v. Rushing (5th Cir.
1985) (communications from lawyer to client are privileged only to extent
necessary to avoid revealing confidential information provided by the client
or advice or opinions of the attorney) with United States v. Ramirez (9th
Cir. 1979) (lawyer-client communications in both directions are generally
covered by privilege). See also Upjohn Co. v. United States (1981) (purpose
of privilege is to encourage full and frank communications between attorneys
and their clients).
Facts Viewed and Observed As a Direct Result of Confidential
Communication The attorney-client privilege is not strictly limited to
communications, but extends to protect observations made as a consequence
of protected communications. People v. Meredith (Cal. 1981).
Hiring a Private Investigator You do not waive the privilege by hiring
someone to further your representation as a lawyer. People v. Meredith (Cal.
1981).
Attorney Interference With Prosecutions Opportunity To Discover
Evidence In some cases, an examination of evidence may reveal
information critical to the defense of a client accused of crime. If the
usefulness of the evidence cannot be gauged without taking possession of it,
the attorney may properly take evidence for a reasonable time before turning it
over to the prosecution. However, whenever defense counsel removes or
alters evidence, the statutory privilege does not bar revelation of the
original location or condition of the evidence in question. In offering the
evidence, the prosecution should present the information in a manner
which avoids revealing the content of attorney-client communications or
the original source of the information. The court refused a requirement for
inevitable discovery by the government. People v. Meredith (Cal. 1981).
Attorney Destroys Evidence See United States v. Kellington (9th Cir.
1998) (affirming felony conviction of lawyer for burning envelope at request
of client who was facing an extradition hearing; [A]n honest and unwitting
attorney would have wanted to know what he was causing to be destroyed for
his fugitive client before putting the torch to it).
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9. Attorney Conceals Evidence See In re Ryder (E.D. Va. 1967) (attorney
suspended from practice for 18 months for taking possession from a client and
concealing in his own safe deposit box stolen money and a sawed-off shotgun,
knowing that the money had been stolen and that the gun had been used in an
armed robbery.)
h. Required Confidentiality:
i. It has long been understood that the privilege protects only communications intended
by the client to be confidential. However, it is also clear that disclosure may be made
to selected persons other than the attorney without losing the cloak of confidentiality.
i. The Corporate Client:
i. The question is: When extending the attorney-client privilege to corporations,
how many people in the corporate organization are within the charmed circle?
ii. Scope of the Privilege:
1. Upjohn Co. v. United States (1981) The communications at issue were
made by Upjohn employees to counsel for Upjohn, acting as such, at the
direction of corporate superiors in order to secure legal advice from counsel.
The communications concerned matters within the scope of the employees
corporate duties, and the employees themselves were sufficiently aware that
they were being questioned in order that the corporation could obtain legal
advice. Finally, the communications were considered highly confidential
when made, and have been kept confidential by the company. Thus,
consistent with the underlying purposes of the attorney-client privilege, these
communications must be protected against compelled disclosure. The Court
finds that the necessary inquiry requires a very case-specific analysis. After
rejecting the control group theory supported by the appellate court, the Court,
in effect, adopted the subject matter test described thus in Harper & Row
Publishers v. Decker (7th Cir. 1970): [A]n employee of a corporation,
though not a member of its control group, is sufficiently identified with
the corporation so that his communication to the corporations attorney
is privileged where the employee makes the communication at the
direction of his supervisors in the corporation and where the subject
matter upon which the attorneys advice is sought by the corporation and
dealt with in the communication is the performance by the employee of
the duties of his employment.
iii. General Ideas:
1. If you inadvertently waive the privilege in a corporate setting, there may be
extra information that would be put at risk for disclosure, such as attorney
work product.
2. Invoking the privilege may create a nice discovery shield there is
possibly a large labor output necessary to collect data from many employees.
a. An added benefit of invocation would be that there are differences in
employee testimony when given to in-house counsel vs. outside
attorneys goes to cooperation.
3. Who is the holder of waiver power? Look to the control group.
4. What if the whole corporations management structure changes during
litigation? Courts will allow the new management to waive privilege.

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3. Psychotherapist-Patient Privilege
a. Defined:
i. Jaffee v. Redmond (1996) The Court held that confidential communications
between a licensed psychotherapist and his patients in the course of diagnosis or
treatment are protected from compelled disclosure under FRE 501. We have no
hesitation in concluding in this case that the federal privilege should also extend to
confidential communications made to licensed social workers in the course of
psychotherapy. We reject the balancing component (interest in privacy vs.
evidentiary need for disclosure) of the privilege implemented by the appellate court
and a number of states.
1. BUT Scalias dissent forcefully argues two points. First, he asks: How likely
is it that a person will be deterred from seeking psychological counseling,
or from being completely truthful in the course of such counseling
because of fear of later disclosure in litigation? Second, he questions
whether a social worker should be permitted to invoke the privilege. A
social worker does not bring the same heightened degree of skill to the job as
a licensed psychiatrist or psychologist. In fact, it is not clear that the degree in
social work requires any training in psychotherapy at all. Further, while
psychiatrists and psychologists do nothing but psychotherapy, social workers
interview people for a multitude of reasons. Thus, the Court ought to leave
for Congress the job to conclude that the privilege should be extended to
social workers.
2. Issue Raised:
a. When do we recognize a new privilege?
i. There must be an important public interest at stake.
ii. The Court rejects case-by-case balancing; instead, what does
society gain by access to this information vs. what is lost?
iii. Rulemakers had this privilege on the list that Congress rejected
the Court finds that it is appropriate to recognize that the
rulemakers had approved use of this privilege [for
psychotherapists].
4. Spousal Privileges
a. General Ideas:
i. Historically at common law, one spouse was incompetent to testify for or against the
other. This grew out of the rule making parties themselves incompetent as witnesses,
combined with the legal fiction that husband and wife were but one person.
ii. There are two related but distinct spousal privileges:
1. One bars adverse spousal testimony.
2. The other protects spousal confidences.
iii. In one sense, the testimonial privilege is the broader of the two, for it goes beyond
protecting communications and blocks all testimony by one spouse against the
other, including accounts of premarital events or acts. The spousal confidences
privilege excludes only testimony concerning private communications between
spouses (and perhaps some behavior in private settings) while they were married.
iv. In another sense, the testimonial privilege is the narrower of the two, for it applies
only if the spouses are married when the testimony is sought. But the spousal
confidences privilege is usually said to protect the interval of the marriage
forever.
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v. There are lots of variations between the states.
b. Policy Arguments:
i. We value marriage as a society, and we want to protect it.
ii. We might think that the spousal privilege impacts how married people interact.
iii. The law recognizes married people as being in a joint enterprise.
c. Approach to a Spousal Privilege Analysis:
i. 3 Considerations:
1. Timing of the marriage:
a. Testimonial It matters if you are married at the time of the testimony.
b. Confidentiality It matters if you are married at the time of the
communication.
2. Communication? Or other evidence?
a. Confidentiality Privilege only covers a communication.
b. Testimonial No such limitation; status is what matters.
3. Family member?
a. Even if the privilege applies generally, it does not apply when a spouse
or a child of either spouse is the victim.
b. Note that all of these exceptions were developed in the Hawkins world
where the accused held the privilege, so there are some open questions
in the Trammel world, but it looks like these exceptions still hold.
d. Testimonial Privilege:
i. Policy Arguments:
1. The privilege preserves ongoing marriages, not only for the benefit of the
husband, wife and children, but for the benefit of the public as well. Hawkins
v. United States (1958).
2. Pitting spouse against spouse seems to invade and deny human dignity an
enterprise in which the government should not engage.
ii. Scope of the Privilege:
1. Civil Suits? In federal courts, it is doubtful that the privilege applies in civil
suits. Ryan v. Commissioner of Internal Revenue (7th Cir. 1977).
2. Who Holds? See Trammel v. United States (1980) (the witness-spouse
alone has a privilege to refuse to testify adversely; the witness may be neither
compelled to testify nor foreclosed from testifying).
a. Before Trammel:
i. The holder of the testimonial privilege was the non-testifying
spouse (in a criminal context; not clear whether that applied in
a civil context) the accused could decide whether or not the
spouse could testify.
b. Policy Arguments:
i. This rule furthers the important public interest in marital
harmony without unduly burdening legitimate law enforcement
needs.
ii. When one spouse is willing to testify against the other in a
criminal proceeding whatever the motivation their
relationship is almost certainly in disrepair; there is probably
little in the way of marital harmony for the privilege to
preserve.
3. How Long? The privilege only exists during marriage.
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4. Joint Participants Exception See United States v. Clark (7th Cir. 1983)
(joint participants exception survives Trammel, for rehabilitative effect of a
marriage, which in part justifies the privilege, is diminished when both
spouses are participants in the crime).
5. Health of Marriage Inquiry? Compare United States v. Brown (8th Cir.
1979) (in overruling claim of privilege, court notes that wife had been with
husband for only two weeks and had not seen him for eight months after he
left her, hence that it was difficult to visualize how the underlying values
could be served by applying the privilege) with United States v. Lilley (8th
Cir. 1978) (declining invitation to condition claims of spousal testimony
privilege on judicial determination that the marriage is a happy or successful
one).
6. Sham Marriage To Block Testimony See Lutwak v. United States
(1953) (war brides case in which s and aliens had apparently married abroad
without intending to live together as spouses; such sham, phony, empty
ceremony rendered testimonial privilege unavailable) and United States v.
Saniti (9th Cir. 1979) (where marriage was a sham, wife of was properly
allowed to testify against him).
a. BUT see San Fratello v. United States (5th Cir. 1985) (fact that
marries witness after crime and shortly before trial does not entitle
prosecutor to call spouse to testify).
7. Spousal Abuse Exception There is an exception to the testimonial privilege
for cases in which one spouse commits a crime against the other. Wyatt v.
United States (1960).
a. This exception applies even when a spouse is apparently a willing
victim in a consensual criminal act. See Wyatt v. United States
(1960) (spousal testimonial privilege inapplicable in Mann Act
prosecution where was charged with prostituting his own wife, even
though both -husband and witness-wife sought to invoke the
privilege, for the statute assumes that husbands induce their wives
against their will to engage in such acts).
b. This exception has been expanded to include crimes against the
spouses property.
8. Spousal Child Abuse Exception There is an exception to the testimonial
privilege for crimes committed by one spouse against the children of either
spouse. See Trammel v. United States (1980), footnote 7.
a. Still Valid? The spousal abuse and spousal child abuse doctrines
above were developed under a pre-Trammel regime; it is slightly
unclear where things stand now, but they probably still hold.
9. Offering of Immunity One might convincingly argue that offering
immunity for one spouse to testify against the other (driving a wedge between
them) militates for conferring the testimonial privilege to the non-testifying
spouse.
a. BUT if this was the case, the testifying spouse would never receive an
offer of immunity and would be thereby penalized this would also be
a form of governmental intrusion into the marriage relationship; thus,
the immunity argument cuts both ways.
10. Disclosure to Third Parties If voluntary disclosure by one spouse is made
to a third party, a court is unlikely to extend the privilege to prevent the third
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party from testifying to the statement the spouse who spoke out made a
voluntary choice by disclosing.
e. Confidences Privilege:
i. Criticisms:
1. McCormick Spousal confidences, covered at the time of their utterance,
should be stripped of protection if the couple later obtains a divorce.
2. Proposed ACN (Instrumentalist Argument) The privilege should be
abolished altogether for these reasons: The traditional justifications for
privileges not to testify against a spouse and not to be testified against by
ones spouse have been the prevention of marital dissension and the
repugnancy of requiring a person to condemn or be condemned by his spouse.
These considerations bear no relevancy to marital communications. Nor can it
be assumed that marital conduct will be affected by a privilege for
confidential communications of whose existence the parties in all likelihood
are unaware.
ii. Defenses:
1. Prof. Louisell A marriage without the right of complete privacy of
communication would necessarily be an imperfect union. Utter freedom of
marital communication from government interference is a psychological
necessity for the perfect fulfillment of marriage. Recognition of the spousal
confidences privilege promotes the public policy of furthering and
safeguarding the objectives of marriage just as other institutions in the area of
domestic relations or family law promote it.
2. Constitutional Right of Privacy As recognized in Griswold v.
Connecticut (1965) (state cannot bar use of contraceptives by married
couples).
3. Prof. Krattenmaker (responding to the ACN) Assuming that spousal
conversations take place without conscious, simultaneous awareness of the
privilege, [t]his proves little without the further assumption that
subconscious, unarticulated knowledge never can influence human conduct.
Surely, there is little reason to doubt that where they exist, interpersonal
privileges such as that for confidential marital communications provide at the
very least a subconscious backdrop to the exercise of the right of privacy.
4. Prof. Black It ought to be enough to say of such a rule that it could easily
even often force any decent person anybody any of us would want to
associate with either to lie or to go to jail. No rule can be good that has that
consequence that compels the decent and honorable to evade or to disobey
it.
iii. Scope of the Privilege:
1. Federal courts have generally limited the privilege to confidential
communications:
a. United States v. Moore (9th Cir. 1979) (no privilege bars post-divorce
testimony by spouse as to sexual relations between former spouses).
b. United States v. Smith (8th Cir. 1976) (spousal confidences privilege
could not block testimony by wife that husband hid heroin in her
underclothing during airplane flight).
2. However, state courts have different views regarding the extent to which the
spousal confidences privilege reaches private acts by one spouse in the
presence of the other:
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4.
5.

6.

7.
8.
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a. Stewart v. Wilson (Ga. App. 1955) (spousal confidences privilege
bars wifes testimony concerning husbands drinking habits).
Civil Suits? This privilege is not limited to the criminal context, it applies to
all legal actions.
Who Holds? Both spouses hold the privilege.
How Long? The privilege is eternal.
a. Policy Argument:
i. If it is about incentives (like in the attorney-client context), and
the general sense of how marriages work, etc., then it should
last forever.
Spousal Abuse or Spousal Child Abuse Exception See United States v.
White (9th Cir. 1992) (privilege does not apply to statements relating to a
crime where a spouse or a spouses children are the victims).
a. Still Valid? The above doctrines were developed under a preTrammel regime; it is unclear where things stand now, but they
probably still hold.
Spousal Suits Courts generally recognize that the privilege does not apply
in the case of spousal suits, such as divorce or child custody litigation.
Spousal Communications Among Outsiders Generally the confidences
privileges does not apply to spousal communications in the presence of
outsiders.
Spousal Communications In Front of Children See Wolfle v. United
States (1934) (citing with approval the principle that communications
between husband and wife, voluntarily made in the presence of children, old
enough to comprehend them, or other members of the family within the
intimacy of the family circle, are not privileged).

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OPINION AND EXPERT TESTIMONY
1. Lay Opinion Testimony (Rule 701)
a. General Ideas:
i. By longstanding tradition, lay witnesses testify to facts, not opinions based on facts;
yet inevitably, lay witnesses do give opinion testimony and always have.
ii. The modern view recognizes that facts and opinions are regions in a continuum,
and they differ in degree rather than kind: Facts are more specific or concrete,
opinions more general or conclusory.
iii. Most concerned about keeping out blatant, blind speculation.
b. Basic Rule:
i. FRE 701 If the witness is not testifying as an expert, the witness testimony in
the form of opinions or inferences is limited to those opinions or inferences which
are (a) rationally based on the perception of the witness, and (b) helpful to a clear
understanding of the witness testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
c. Policy Argument:
i. A witness should not be so closely confined by the rules of legal diction that, in the
end, he is effectively muzzled.
d. Application:
i. Scope of Admissible Lay Opinions [T]he witness may state his impressions
and opinions based upon what he has observed. It is a means of conveying to the
jury what the witness has seen or heard. . . . Because it is sometimes difficult to
describe [various matters,] witnesses may relate their opinions or conclusions of what
they observed. United States v. Skeet (9th Cir. 1982) (listing as examples the
mental or physical condition of a person, his character or reputation, the emotions
manifest by his acts, and speed of a moving object, as well as matters like size,
heights, odors, flavors, colors, heat). See also Hardy v. Merrill (1878) (lay
opinions should be admissible upon a great variety of unscientific questions
arising every day, and in every judicial inquiry. These are questions of identity,
handwriting, quantity, value, weight, measure, time, distance, velocity, form, size,
age, strength, heat, cold, sickness, and health; questions also concerning various
mental and moral aspects of humanity, such as disposition and temper, anger, fear,
excitement, intoxication, veracity, general character, and particular phases of
character, and other conditions and things, both moral and physical, too numerous to
mention.).
ii. Interpreting Anothers Verbal Behavior See United States v. Petrone (2d Cir.
1950) (alleged possession of counterfeit bills; federal agent testified that had not
given the impression . . . that he did not know those bills were in that room). See
also United States v. Davis (11th Cir. 1986) (alleged drug conspiracy; V testified that
in asking V whether he wanted to make a trip, L was referring to an illegal act
and that in telling V that you dont have to worry about M, L meant that M must
have known about the dope business).
iii. Interpreting Anothers Non-Verbal Behavior In a suit on an accidental death
policy, arising on the death of a husband killed in a fight he started with his wife,
liability turned upon whether he thought he would be killed in the fight. The trial
court permitted the daughter to testify that he did not believe his wife would ever kill
him. When . . . the witness observes first hand the altercation in question, her
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opinions on the feelings of the parties are based on her personal knowledge and
rational perceptions and are helpful to the jury. John Hancock Mutual Life
Insurance Co. v. Dutton (7th Cir. 1978). See also Bohannon v. Pegelow (7th Cir.
1981) (in suit alleging that police officer violated civil rights in arresting for
pandering, admitting testimony by s girlfriend, whose favors allegedly offered to
sell to , that the arrest was motivated by racial prejudice, for she observed it).
iv. Lay Testimony As to Sanity? See United States v. Alden (7th Cir. 1973) (trial
court should be liberal in admission of lay testimony describing any acts, conduct,
declarations, spoken words, appearance, and manner of speech, but an opinion can
only be expressed where witness has been qualified by sufficient association with
an opportunity to observe the subject). See also United States v. Lawson (7th
Cir. 1981) (government offered testimony by three FBI agents that was sane at
the time of the offense, based on their investigation, and on dealing with him at a
rendezvous; court held [n]o more foundation was necessary in this case to admit the
opinion testimony of the FBI agents. On cross-examination of each of them, defense
counsel pointed out that each had had the opportunity to observe on only one
occasion. The jury was free to give that testimony, particularly in light of the expert
testimony that was also heard, whatever weight it felt appropriate.)
v. Speculation and Guesswork See Gorby v. Schneider Tank Lines (7th Cir. 1984)
(witness could only observe the semi-tanker truck from a car in the opposite lane of
traffic and thus could not know the exact measures Welsch took to avoid the accident;
witness could not know when Welsch perceived s truck; never established that
the witness was familiar with the Schneider semi-tanker truck; thus, never
established that the witness was familiar with the safety equipment semi-tanker trucks
carry, the distances over which trucks may safely stop, the load the truck carried, or
the brake and steering equipment of such trucks; the mere fact that the witness was a
motorist with 29 years of experience did not give him the personal knowledge
necessary to formulate an admissible lay opinion.
2. Expert Witnesses (Rules 702-706)
a. Basic Rules:
i. FRE 702: Testimony by Experts If scientific, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
1. General Idea:
a. The standard is intended to be lenient.
2. Who Is an Expert?:
a. No Prior Experience See Garrett v. Desa Industries (4th Cir.
1983) (though he lacked prior experience, a person holding a
masters degree in engineering qualified as expert).
b. Not a Specialist See Payton v. Abbott Laboratories (1st Cir. 1985)
(physicians properly testified about injuries resulting from use of DES
during pregnancy, even though neither was a research scientist or a
specialist in the field).
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c. Practical Experience But No Formal Training See United States
v. Thomas (7th Cir. 1980) (testimony by person who had worked in
car repair shop and had rebuilt cars as a hobby, to the effect that was
not operating such a shop, since he only had tools for taking apart
cars and none for assembling, repairing or painting).
d. Other Skilled Witnesses See United States v. 79.20 Acres of
Land (8th Cir. 1983) (landowner testifies to value of property); Rossi
v. Mobil Oil Corp. (Emer. Ct. App. 1983) (bookkeeper employed by
gasoline retailer testifies to gallonage and profitability figures;
Greenwood Ranches v. Skie Construction Co. (8th Cir. 1980)
(rancher testifies to probable value at maturity that failed crop would
have had).
3. When Can Experts Testify?:
a. Should Experts Testify Only on Subjects Beyond Lay Persons?
Modern decisions conflict. Compare In re Japanese Electric
Products Antitrust Litigation (3d Cir. 1983) (FRE 702 does not limit
expert testimony to matters beyond the jurys sphere of knowledge)
with Scott v. Sears Roebuck & Co. (4th Cir. 1986) (error to admit
professors testimony that persons wearing heels tend to avoid
walking on grates and that a nearer section of the curb hid the
displaced, further section; on both matters, witness was repeating
what is common knowledge and common sense; jurors themselves
went to the scene and saw photographs).
i. BUT the Japanese Products case reaches the preferable result
since experts may well help the jury understand even familiar
matters, in virtue of experience or training that provides a more
thorough or refined understanding than ordinary experience
provides. See Garbincius v. Boston Edison Co. (1st Cir.
1980) (approving testimony by civil engineer as to adequacy in
number and placement of devices warning motorists of
excavation). Where expertise is only marginally helpful, a
decision to exclude such testimony might better rest on FRE
403.
ii. FRE 703: Bases of Opinion Testimony by Experts The facts or data in the
particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in evidence in
order for the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the opinion or
inference unless the court determines that their probative value in assisting the
jury to evaluate the experts opinion substantially outweighs their prejudicial
effect.
1. Three Bases for Expert Testimony:
a. Reliance on facts or data learned through firsthand observation before
the hearing.
i. Parallels personal knowledge requirement that FRE 602 always
requires of lay witnesses.
b. Reliance on facts or data that he learns at the hearing.
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i. This is unique to expert witnesses.
ii. This category means (1) testimony heard by the expert while
sitting in the courtroom listening to other testimony before
taking the stand himself and (2) information conveyed in
hypothetical questions summing up evidence previously
admitted.
c. Reliance on what amounts to outside data, meaning information he
gleans before trial by consulting other sources, which must be
reasonably relied upon by other experts in the field.
i. Again, this is unique to expert witnesses.
ii. Necessarily experts rely on facts and data that are not
mentioned at trial, such as data gleaned from books and
articles, conversations and conferences with colleagues,
courses, and experiments, where it is impractical or impossible
to introduce such material in evidence at trial.
1. BUT see Jenkins v. United States (D.C. Cir. 1962)
(better reasoned authorities admit opinion testimony
based, in part, upon reports of others which are not in
evidence but which the expert customarily relies upon;
still, the expert diagnosis cannot rest solely on
unintroduced reports, for [s]uch reliance would
amount to offering an opinion of another in violation of
the hearsay rule).
2. General Idea:
a. The expert should not merely be channeling someone elses testimony;
the expert should be adding something.
3. Policy Argument:
a. The rule is about reliability and the value added of an expert.
4. Application:
a. Expert Reliance on Otherwise Inadmissible Hearsay Evidence:
i. Policy Argument:
1. The rationale is that the expert is fully capable of
judging for himself what is, or is not, a reliable basis for
his opinion. In a sense, the expert synthesizes the
primary source material be it hearsay or not into
properly admissible evidence in opinion form. United
States v. Sims (9th Cir. 1975).
ii. No Substantive Use of Underlying Data Read together,
FRE 703 and 705 reveal that the data underlying an experts
opinion which is elicited on cross-examination does not come
in as substantive evidence. The data is limited for the limited
and independent purpose of enabling the jury to scrutinize the
experts reasoning. United States v. Wright (D.C. Cir. 1986).
1. BUT some courts are more troubled about the risks of
abuse. See United States v. McCollum (9th Cir. 1984)
(both sides gave conflicting testimony as to whether
was truly under hypnosis when the s forensic
hypnotist interviewed him; defense sought to introduce
a videotape of the session; the trial court refused, and
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the reviewing court approved; the attempt to introduce
the tape essentially amounted to an effort to put the s
testimony directly before the jury without subjecting
him to cross-examination and impeachment).
b. Expert Himself As the Judge of Reasonableness Compare In re
Japanese Electric Products Antitrust Litigation (3d Cir. 1983)
(when experts testified that underlying data were of a type reasonably
relied upon by experts in their respective fields, trial court erred in
substituting its own opinion as to what constitutes reasonable
reliance) with Soden v. Freightliner Corp. (5th Cir. 1983) (experts
have wide latitude in picking and choosing the sources on which to
base opinions, but FRE 703 requires courts to examine the reliability
of those sources).
c. Expert Relying on Interested Witness See Dallas & Mavis
Forwarding Co. v. Stegall (6th Cir. 1981) (excluding testimony by
state trooper that s car had moved into the left lane before the
accident, because this opinion was based on no physical evidence
and came primarily from the story of a biased eyewitness, who
should be required to testify directly and to be subject to crossexamination).
d. Expert Reporting the Opinion of Others Considered Reliable
Trial court properly excluded defense expert testimony on the price
per pound of ivory where the expert could only relay anothers
opinion and had no opinion of his own on the matter or on whether
price per pound . . . is any measure of a tusks value). United States
v. Tomasian (7th Cir. 1986).
e. Expert Relying on Hearsay: Confrontation Clause Issues In
criminal cases, a courts inquiry under FRE 703 must go beyond
finding that hearsay relied on by an expert meets these standards of
reasonable reliance by other experts in the field. An experts
testimony that was based entirely on hearsay reports, while it might
satisfy FRE 703, would nevertheless violate a s constitutional right
to confront adverse witnesses. A criminal must therefore also have
access to the hearsay information relied upon by an expert witness.
United States v. Lawson (7th Cir. 1981).
f. Expert Claiming Endorsement of Non-Testifying Expert See
State v. Towne (Vt. 1982) (forensic psychiatrist called by prosecutor
testified that he consulted physician who wrote book containing the
best description of psychosexual disorders and that the latter was in
concurrence with my opinion in this case; this testimony violated
defense confrontation rights).
iii. FRE 704: Opinion on Ultimate Issue (a) Except as provided in subdivision (b),
testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of
fact; (b) No expert witness testifying with respect to the mental state or condition
of a in a criminal case may state an opinion or inference as to whether the
did or did not have the mental state or condition constituting an element of the
crime charged or of a defense thereto. Such ultimate issues are matters for the trier
of fact alone.
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1. Historical Note:
a. The exception in subdivision (b) was created as a result of the
Hinckley case.
iv. FRE 705: Disclosure of Facts or Data Underlying Expert Opinion The expert
may testify in terms of opinion or inference and give reasons therefore without first
testifying to the underlying facts or data, unless the court requires otherwise. The
expert may in any event be required to disclose the underlying facts or data on
cross-examination.
1. General Idea:
a. The rule allows the expert to cut to the chase forget about having to
set up the whole thing through a lengthy set of hypotheticals.
2. Policy Arguments:
a. Saves time no longer portraying the evidence in the interests of your
side in the middle of the trial.
b. There is a good opportunity upon cross-examination to bring out any
problematic areas.
v. FRE 706: Court Appointed Experts
1. FRE 706(a): Appointment The court may on its own motion or on the
motion of any party enter an order to show cause why expert witnesses should
not be appointed, and may request the parties to submit nominations. The
court may appoint any expert witnesses agreed upon by the parties, and
may appoint expert witnesses of its own selection. An expert witness shall
not be appointed by the court unless the witness consents to act. A witness
so appointed shall be informed of the witness duties by the court in
writing, a copy of which shall be filed with the clerk, or at a conference in
which the parties shall have opportunity to participate. A witness so
appointed shall advise the parties of the witness findings, if any; the
witness deposition may be taken by any party; and the witness may be
called to testify by the court or any party. The witness shall be subject to
cross-examination by each party, including a party calling the witness.
a. General Idea:
i. This is not done very often our adversarial system militates
against this happening.
2. FRE 706(b): Compensation Expert witnesses so appointed are entitled
to reasonable compensation in whatever sum the court may allow. The
compensation thus fixed is payable from funds which may be provided by law
in criminal cases and civil actions and proceedings involving just
compensation under the fifth amendment. In other civil actions and
proceedings the compensation shall be paid by the parties in such proportion
and at such time as the court directs, and thereafter charged in like manner as
other costs.
3. FRE 706(c): Disclosure of Appointment In the exercise of its discretion,
the court may authorize disclosure to the jury of the fact that the court
appointed the expert witness.
4. FRE 706(d): Parties Experts of Own Selection Nothing in this rule
limits the parties in calling expert witnesses of their own selection.

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3. Scientific Evidence
a. Defining a Standard:
i. Prior To Daubert Until Daubert was decided in 1993, the Frye standard prevailed,
which required scientific evidence to be generally accepted in the pertinent field(s)
of knowledge. Since then, while the federal system and some states follow Daubert,
a few states have declined the invitation to follow Daubert.
ii. Policy Argument:
1. Even before Daubert, many able courts were beginning to reject Frye as being
vague, manipulable, and too restrictive in excluding the fruits of cutting-edge
scientific learning.
iii. Daubert v. Merrell Dow Pharmaceuticals (1993) The main question was whether
the Frye test was superseded by the adoption of the FRE. The drafting history of the
rules make no mention of Frye, and a rigid general acceptance requirement would
be at odds with the liberal thrust of the FRE and their general approach of relaxing
the traditional barriers to opinion testimony. Thus, the Frye standard should no
longer be applied to federal trials. A key question to be answered in determining
whether a theory or technique is scientific knowledge that will assist the trier of fact
will be whether it can be (and has been) tested. Another pertinent consideration is
whether the theory or technique has been subjected to peer review and
publication. Additionally, in the case of a particular scientific technique, the court
ordinarily should consider the known or potential rate of error, and the existence
and maintenance of standards controlling the techniques operation. Finally,
general acceptance can yet have bearing on the inquiry. Widespread acceptance
can be an important factor in ruling particular evidence admissible, and a known
technique that has been able to attract only minimal support within the community
may properly be viewed with skepticism. The inquiry envisioned by FRE 702 is a
flexible one. To summarize: general acceptance is not a necessary
precondition to the admissibility of scientific evidence under the FRE, but the
Rules of Evidence especially FRE 702 do assign to the trial judge the task of
ensuring that an experts testimony both rests on a reliable foundation and is
relevant to the task at hand. Pertinent evidence based on scientifically valid
principles will satisfy those demands.
1. BUT Rehnquist dissent:
a. Says that this decision is turning judges into amateur scientists.
b. Issues after Daubert:
i. It is somewhat unclear how far Daubert extends it at least applies in the context of
expert testimony for scientific evidence.
1. BUT bottom-line message after Daubert is that judges should take a role in
determining the underlying reliability of scientific evidence a screening
function.
ii. The problem is that science is not a revelation of an objective truth science shifts;
however, we combine the lack of certainty with the uncertainty of truth and do the
best we can to get to the truth.
iii. There are lingering concerns about the reliability of scientific evidence and concerns
about the fit when admitting it.
1. There are concerns about jury misuse we do not want them overly
impressed; also, we do not want the expert to displace the jurys own
commonsense judgments.
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iv. Courts are particularly concerned about evidence regarding the credibility of a
witness this is in contrast with FRE 608 which speaks to a character for
untruthfulness, where a non-expert is allowed to testify on credibility of a witness.
Policy Arguments For Daubert:
i. Permits the admission of cutting-edge science.
ii. Worried that juries will be overly impressed with one sides experts, so you want
there to be effective counter-arguments presented.
Policy Arguments Against Daubert:
i. Puts more emphasis on the role of the judge gives too much discretion to the trial
judge.
ii. Turns judges into quasi-scientists (Rehnquists argument).
iii. Concerns that junk science may be admitted.
iv. At least as much judicial screening out is happening as letting in new, cutting-edge
scientific theories, and judicial screening might take choices away from jury
consideration that rightfully should go to them.
Application:
i. Application of Daubert See United States v. Bonds (6th Cir. 1993) (Daubert
requires court to consider whether principles and method have been tested, whether
they have been peer reviewed, what rates of error appear, and general acceptance).
ii. Criticism of Daubert Concerns arose that courts were being flooded with junk
science.
iii. Standard of Review After Applying Daubert The Court held that an ordinary
abuse of discretion standard applies. General Electric Co. v. Joiner (1997).
iv. Daubert Extended to All Expert Testimony The Court held that the gatekeeping
function applies equally to all expert testimony, and that it would be difficult, if not
impossible to differentiate between scientific knowledge and technical or other
specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael (1999).
v. Application of Daubert Can Require Major Pretrial Hearings See United
States v. Bond (6th Cir. 1993) (trial judge assigned to a magistrate the task of
appraising DNA testing of blood in an FBI laboratory; the magistrate issued a 120page report recommending in favor of the evidence).
vi. Validity of Reanalysis As a Technique There is case support for the validity of
reanalysis. See In re Paoli R. Yard PCB Litigation (3d Cir. 1990) (in suit alleging
ailments from PCB contamination in railyard and surroundings, court erred in
excluding meta-analysis based on combining and reanalyzing data from
independent epidemiological studies).
vii. Standards of Statistical Significance Courts need not insist on statistical evidence
so strong as to satisfy the academic and scientific community. See DeLuca v.
Merrell Dow Pharmaceuticals, Inc. (3d Cir. 1990) (court erred in excluding
testimony by pediatric pharmacologist; while p-value in studies exceed .05 and it is
common to reject such results as statistically insignificant, confidence levels and
statistical significance is but a part of a meaningful evaluation of the validity of
scientific evidence).
Syndrome and Social Framework Evidence:
i. Policy Question:
1. In this context, it is more questionable that we gain value-added information
by using an expert this type of information may just be basic human nature
judgments that a jury can handle on its own.
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ii. Purposes For Using:
1. Used to directly prove substantive issues, e.g., the habits of a sexually abused
child.
2. To respond to otherwise exculpatory evidence, e.g., why an alleged victim is
recanting, why failing to report immediately, etc.
iii. Examples:
1. Child Abuse Prosecutions Courts often admit testimony describing
battered child syndrome (BCS) or child sexual abuse accommodation
syndrome (CSAAS). In the sexual abuse cases, experts describe delays in
reporting and initial reporting of only part of what happened, behavioral
problems at school, vomiting, sexualized play, and regression in toilet training
(among younger children), disclosure to a friend, withdrawal and
daydreaming, and low self-esteem (among older children). See United States
v. Hadley (9th Cir. 1990) (in trial of teacher, admitting psychiatric testimony
describing behavior patterns in sexually abused children; such testimony helps
jury understand other proof); State v. Nemeth (Ohio 1998) (in trial of 16year-old boy for killing his mother with bow and arrow, admitting testimony
on battered child syndrome, which shed light on question whether he acted
with requisite state of mind); State v. Huntington (Wis. 1998) (expert cannot
testify that child is telling the truth, but may testify that delayed disclosure, as
happened here, is to be expected); Commonwealth v. Federico (Mass. 1997)
(reversing conviction for sexual abuse of child for error in letting experts
testify in effect that abuse had occurred).
2. Sexual Assault Trials Courts often admit evidence of rape trauma
syndrome (RTS) to help assess conduct by the victim after the fact and
evaluate defense claims of consent. See People v. Hampton (Colo. 1987)
(psychologist describes pattern of emotional adjustment in rape victims, which
could help jury assess delay in reporting). Court have tended not to allow use
of RTS to prove that an attack (or criminal penetration) occurred. People v.
Taylor (N.Y. 1990).
3. Men Beating Wives/Girlfriends Courts often admit evidence of battered
woman syndrome (BWS) to shed light on the behavior of the woman. See
Truhillo v. State (Wyo. 1998) (in trial of man for kidnapping and aggravated
assault against girlfriend, admitting testimony on BWS to explain her
behavior); State v. Kelly (approving such testimony in trial of wife for
murdering husband, to show self-defense).
4. Important Questions, Under FRE 702, For Social Framework Evidence:
a. Whether the expert has an adequate basis in observation and theory.
b. Whether the jury needs the kind of help an expert can provide.
5. Do Jurors Need Help Understanding Abuse Victims? See People v.
McAlpin (Cal. 1991) (describing myths surrounding child abuse); State v.
Koss (Ohio 1990) (describing general misconceptions relating to battered
women).
6. Experts Should Not Say a Particular Victim Suffers From the Syndrome
See Commonwealth v. Craig (Ky. 1990) (should not say whether shooting
was result of BWS); State v. Gettier (Iowa 1989) (should not use RTS
label).
7. Should Syndrome Evidence Have to Satisfy Daubert? Compare United
States v. Hadley (9th Cir. 1990) (psychiatric testimony on behavioral patterns
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in sexually abused children need not satisfy pre-Daubert standards of Frye)
and Cal. Evid. Code 1107 (BWS shall not be considered a new scientific
technique whose reliability is unproven if expert is properly qualified) with
United States v. Amador-Galvan (9th Cir. 1993) (remanding so trial court
can apply Daubert in ruling on motion to admit expert testimony on reliability
of eyewitness identification).
8. What About Other Psychological Profiles? See United States v. Rahm
(9th Cir. 1993) (in trial for possessing counterfeit currency, error to exclude
defense expert testimony based on Wechsler Adult Intelligence Scale and
Minnesota Multiphasic Personality Inventory that s intelligence was
average but her scores on subtests were below average and indicated a
tendency to overlook visual details).
a. BUT admitting such proof to help the State may be more problematic.
See United States v. Gillespie (9th Cir. 1988) (in trial for sexual
assault of minor, error to admit testimony describing characteristics
common to child molesters).
g. Lie Detector Tests:
i. Traditionally these do not come in as evidence.
ii. Even if the test results are highly accurate, their reliability may be overly weighted by
the jury, who may use them to overlook or ignore over pertinent evidence.
iii. Why dont we just admit them?
1. Questions of jury nullification arise there is some additional value created
by the effort to try and get it right through fellow citizens.
2. Worried about the overall effects on the legal and social systems with the use
of an absolute truth-revealing machine.
3. Worried about 5th Amendment problems.
4. The Relevance of Probabilistic Analysis
a. General Idea:
i. Seldom does the degree of probability suggested by the evidence lend itself readily to
mathematical expression or attain numeric precision. But probabilistic evidence is
sometimes offered, and in certain kinds of cases (such as discrimination suits and
litigation over paternity) mathematical proof has become common.
b. Examples:
i. Abuse of Probabilistic Evidence See People v. Collins (Cal. 1968) (this case
captures reliability concerns with probabilistic evidence; the prosecution basically
made up various probabilities and then improperly used the product rule to distort
the statistics; the court stated that the testimony as to mathematical probability
infected the case with fatal error an distorted the jurys traditional role of determining
guilt or innocence according to long-settled rules; on the record before us should
not have had his guilt determined by the odds and that he is entitled to a new trial).
ii. Approving Use of Probabilities Occasional cases approve use of probabilities to
show identity. See State v. Klindt (Iowa 1986) (approving testimony by statistician,
based on data about race, sex, approximate age, and blood type of torso found in
river, as compared to known characteristics of three other missing women, indicating
that the likelihood was over ninety-nine percent that the torso was that of s wife
rather than someone else).
iii. Market-Share Liability Theory See Sindell v. Abbott Laboratories (Cal. 1980)
(applying market-share liability theory in case on the anti-miscarriage drug DES; a
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who sues makers of identical products may get a judgment against them all, with each
to pay the percentage corresponding to its market share).
iv. Enterprise Liability Theory See Hall v. E.I. Du Pont De Nemours & Co.
(E.D.N.Y. 1972) (applying enterprise liability theory in case on blasting caps; a
who sues all or most makers of essentially identical dangerous products may hold
each liable on a theory of joint liability, and may win a judgment for the full amount
of damages).
c. Policy Arguments Against Relying on Probabilistic Evidence Alone:
i. Leads to overcompensation of s each of 100 similar s win, even though the
evidence means that should be liable to only 80.
ii. Permits recovery on proof inherently inferior to particularized evidence, which at
least tends directly to establish critical points.
iii. Misinterprets reality, because particularized proof usually exists and failing to offer it
suggests not so much that it is not there, but that it is unfavorable to the party relying
on the numerical probabilities.
iv. Creates an undesirable counterincentive, discouraging active pursuit of particularized
proof.
v. Either leaves nothing for the jury to decide in the exercise of reason, thus leading to
jury nullification, or renders the jurys work transparent, thus subjecting juries to
criticism that juries decide cases by or against the odds.
vi. Undesirably quantifies the margin for error tolerated in the system, revealing that a
civil claimant may recover nothing even when the probability is as high as .49 that he
should have won.
vii. Lessens public respect for and acceptance of courts by showing that they gamble on
serious matters.

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BURDENS & PRESUMPTIONS
1. Burdens and Presumptions in Civil Cases (Rules 301, 302)
a. Basic Rules:
i. FRE 301: Presumptions in General in Civil Actions and Proceedings In all civil
actions and proceedings not otherwise provided for by Act of Congress or by these
rules, a presumption imposes on the party against whom it is directed the burden
of going forward with evidence to rebut or meet the presumption, but does not
shift to such party the burden of proof in the sense of the risk of nonpersuasion,
which remains throughout the trial upon the party on whom it was originally cast.
ii. FRE 302: Applicability of State Law in Civil Actions and Proceedings In civil
actions and proceedings, the effect of a presumption respecting a fact which is an
element of a claim or defense as to which State law supplies the rule of decision is
determined in accordance with State law.
b. Burdens:
i. Basic Definitions:
1. Burden of Production The party bearing the burden of production runs the
risk of losing automatically if he does not offer sufficient evidence to enable a
reasonable person to find in his favor (determined by the judge).
2. Burden of Persuasion The party bearing the burden of persuasion (or risk
of nonpersuasion) can win only if the evidence persuades the trier of the
existence of the facts that he needs in order to prevail (ordinarily this means
more likely than not) (determined by the jury).
ii. General Ideas:
1. Success in carrying the burden of production does not necessarily shift that
burden to the adversary. If the party bearing the burden of production carries
it well, however, the burden does shift to his opponent. Jurisdictions vary in
defining proof that shifts the burden of production to the opponent. As a
convenient shorthand, we use the term cogent and compelling.
2. Perhaps because the burden of persuasion operates at the end of trial, courts
often say it never shifts.
iii. Allocating the Burdens:
1. On any particular point, ordinarily burdens of pleading, producing evidence,
and persuading the trier of fact are all cast upon the same party.
iv. Reasons for Allocating the Burdens:
1. To serve substantive policy, making it easier or harder for s to recover or
s to avoid liability.
2. To recognize what is most probably true.
3. To place them on the party most likely to have access to the necessary proof.
4. To help resolve cases where definitive proof is unavailable.
c. Presumptions:
i. Basic Definition:
1. Presumption A device that requires the trier to draw a particular conclusion
when the basic facts are established, in the absence of evidence tending to
disprove the fact presumed (counterproof).
ii. General Ideas:
1. Burdens in civil cases may be allocated by a presumption.
2. Presumptions are particularly relevant where direct proof is elusive.
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3. A presumption unopposed controls decision on the point in question. On the
other hand, if the party opposing the presumption offers cogent and
compelling proof that the presumed fact is not so, the presumption drops from
the case.
4. Sometimes there is enough proof of the basic facts to support a finding that
they exist, but not enough to require such a finding, so the trier might find
against the basic facts, disbelieving witnesses or resolving a conflict of proof
by concluding that the basic facts are just not so. In this intermediate
situation, the presumption affects decision only if the trier finds the basic facts
to be so. For a jury-tried case, the judge must give a contingent instruction
that if the jury finds the basic facts, then it must find the presumed fact.
5. Some presumptions, like the bailed goods presumption, apply again and again
in a particular setting: they are context specific. Others are unattached.
6. Some presumptions grew out of common law, as is true for mailed letters.
Others are statutory: The one for bailed goods is embodied in the UCC.
Presumptions also grow out of efforts to implement remedial statutes.
iii. Policy Arguments:
1. Presumptions resolve recurring problems of proof without the need for
extended debate.
iv. Examples:
1. Mailed Letter If it is shown that a letter was properly posted (addressed,
stamped, placed in the mailbox), a presumption directs the trier to conclude
that it was delivered to the addressee in due course, unless there is
counterproof that the addressee never got it. This presumption comes into
play whenever a party bears a burden to prove delivery of a mailed letter.
2. Loaned Auto In a suit against the owner of an automobile involved in an
accident, there is a presumption that the driver had the owners permission.
3. Scope-of-Employment Upon proof that owned the car and employed
the driver, there is a presumption that the driver was acting within the scope of
his duties.
4. Violent Death In a suit on an accidental death or double indemnity policy,
upon proof that decedent came to a sudden violent end, there is a presumption
that an accident (as opposed to suicide or crime) caused the death. Even
though the beneficiary bears the burden of persuasion on the question of
accident, the presumption comes to the beneficiarys aid, determining either
(1) the way her case is conveyed to the jury in the courts instructions, or (2)
whether her case gets to the jury at all, if the facts seem strongly to suggest
suicide.
5. Dual Survivors In a case where two parties die in the same accident, and
there is no proof of who actually died first, there is a presumption that the
person involved in litigation survived the other party.
6. Missing Person In a suit for death benefits, upon proof that the insured has
been absent without tidings for a period of seven years, there is a presumption
that he is dead.
7. Death in Marriage In a suit for death benefits, upon proof that and
decedent entered into a ceremonial marriage, there is a presumption that the
marriage is valid and ongoing.

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v. Presumptions in the In-Between Situation:
1. Methods:
a. The Bursting Bubble Approach When the party hurt by the
presumption offers counterproof that the presumed fact is not so,
common law had it that the presumption vanished from sight.
Presumptions smoke out the opponent, making him produce
sufficient counterproof that the presumed fact is not so; when he does
produce, the presumption is put to flight; hence presumptions are
like bursting bubbles. This common law tradition meant that the
presumptions shifted, to the party against whom it operated, the burden
of coming forward with evidence (burden of production) and not the
burden of persuasion.
i. E.g., after counterproof is offered, jury asks if it more likely or
not that a letter has been delivered (favors the ).
b. The Morgan (Reformist) Approach This approach was in response
to a perceived absurdity in the bursting bubble approach: How can a
presumption be strong enough to require a finding in the absence of
counterproof, yet so weak that it vanishes in the face of counterproof
which the jury could reject? Thus, this approach means that where the
mind of the jury or the trier of fact is in equilibrium, the burden of
persuasion is fixed on the party against whom the presumption
operated. If there is counterproof, then only the burden of persuasion
shifts the presumption remains.
i. E.g., after counterproof is offered, jury asks if it is more likely
or not that a letter has not been delivered (favors the ).
c. FRE 301 Approach The rule is almost a straight adoption of the
bursting bubble approach, but it does not quite go that far.
i. St. Marys Honor Center v. Hicks (1993) The alleged
intentional racial discrimination by his employer in violation of
Title VII. In a Title VII case, once the proves a prima facie
case of racial discrimination, a presumption places upon the
the burden of producing an explanation to rebut the prima facie
case. However, under FRE 301, the ultimate burden of
persuading the trier of fact that the intentionally
discriminated against the remains at all times with the .
The district court determined that the reasons the gave were
not the real reasons for s demotion and discharge. It
nonetheless held that had failed to carry his ultimate burden
of proving that race was the determining factor. This was
correct. The determination that a has met its burden of
production can involve no credibility assessment. At the close
of the s case, the court is asked to decide whether an issue of
fact remains for the trier of fact to determine. Once the has
succeeded in carrying its burden of production, the built-in
presumption is no longer relevant. The presumption,
having fulfilled its role of forcing the to come forward with
some response, simply drops out of the picture. [A]
fundamental principle of Rule 301 [is] that a presumption
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does not shift the burden of proof . . . . The presumption
here is a procedural device, designed only to establish an
order of proof and production.
1. BUT consider the Report of the House-Senate
Conference Committee, which tells us that if the
adverse party offers evidence contradicting the
presumed fact, the jury should be told that it may
infer the existence of the presumed fact from proof of
the basic facts. Not surprisingly, modern authority is
split on the effect that FRE 301 prescribes for civil
presumptions in the in-between case where there is
some counterproof, but not enough to require a decision
favoring the party against whom the presumption
operates.
2. Ways That Courts Avoid the Bursting Bubble:
a. Substantial or Uncontradicted Evidence A presumption
survives the introduction of counterproof, and is rebutted only by
counterproof of high quality substantial or uncontradicted
evidence, or evidence that is undisputed or clear and positive or
unimpeached. This approach is most often seen with the loaned
automobile and scope-of-employment presumptions. See Bieszck
v. Avis Rent-A-Car System, Inc. (Mich. 1998) (loaned auto
presumption does not shift burden of persuasion, but can only be
overcome by positive, unequivocal, strong and credible evidence,
which high threshold serves the legislative purpose underlying the
statute and helps promote public safety).
b. Believe the Evidence A presumption survives the introduction of
counterproof challenging the presumed fact, and the jury should be
told to find the presumed fact unless it believes the counterproof.
See Sutphen v. Hagelin (Conn. 1975) (family car presumption that
driver had owners permission does not disappear in the face of
counterproof, and jury should be told that presumption applies if it
disbelieves the counterproof).
c. Equipoise A presumption survives the introduction of
counterproof, and the trier must find the presumed fact unless the
counterproof makes the nonexistence of the presumed fact as likely as
its existence. See Hinds v. John Hancock Mutual Life Insurance
Co. (Me. 1959) (court decided that presumptions should have
maximum coercive force short of shifting the burden of persuasion,
and so endorsed a rule that the presumption controls until the contrary
evidence persuades the factfinder that the balance of probabilities is in
equilibrium).
d. Shift Burden of Persuasion A presumption shifts to the party
against whom it operates the burden of persuasion. See Knowles v.
Gilchrist Co. (Mass. 1972) (bailed goods presumption shifts to bailee
the burden of persuasion on the issue of its due care).

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AUTHENTICATION
1. Introduction (Rule 901)
a. Basic Rule:
i. FRE 901: Requirement of Authentication or Identification
1. FRE 901(a): General Provision The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its
proponent claims.
2. FRE 901(b): Illustrations By way of illustration only, and not by way of
limitation, the following are examples of authentication or identification
conforming with the requirements of this rule:
a. FRE 901(b)(1): Testimony of Witness With Knowledge
Testimony that a matter is what it is claimed to be.
b. FRE 901(b)(2): Non-Expert Opinion on Handwriting Non-expert
opinion as to the genuineness of handwriting, based upon familiarity
not acquired for purposes of the litigation.
c. FRE 901(b)(3): Comparison By Trier or Expert Witness
Comparison by the trier of fact or by expert witnesses with specimens
which have been authenticated.
d. FRE 901(b)(4): Distinctive Characteristics and the Like
Appearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
e. FRE 901(b)(5): Voice Identification Identification of a voice,
whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at
any time under circumstances connecting it with the alleged speaker.
f. FRE 901(b)(6): Telephone Conversations Telephone
conversation, by evidence that a call was made to the number assigned
at the time by the telephone company to a particular person or
business, if (A) in the case of a person, circumstances, including selfidentification, show the person answering to be the one called, or (B)
in the case of a business, the call was made to a place of business and
the conversation related to business reasonably transacted over the
telephone.
g. FRE 901(b)(7): Public Records or Reports Evidence that a
writing authorized by law to be recorded or filed and in fact recorded
or filed in a public office, or a purported public record, report,
statement, or data compilation, in any form, is from the public office
where items of this nature are kept.
h. FRE 901(b)(8): Ancient Documents or Data Compilation
Evidence that a document or data compilation, in any form, (A) is in
such condition as to create no suspicion concerning its authenticity,
(B) was in a place where it, if authentic, would likely be, and (C) has
been in existence 20 years or more at the time it is offered.
i. FRE 901(b)(9): Process or System Evidence describing a process
or system used to produce a result and showing that the process or
system produces an accurate result.
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j. FRE 901(b)(10): Methods Provided By Statute or Rule Any
method of authentication or identification provided by Act of Congress
or by other rules prescribed by the Supreme Court pursuant to
statutory authority.
b. General Ideas:
i. Authentication gives rise to issues of conditional relevancy under FRE 104(b):
Something offered in evidence becomes relevant in the case only if the proponent
proves that the thing is what he claims it to be.
ii. There is a sufficiency requirement to the rule. Once sufficiency is established, it is
up to the jury to decide whether it believes the evidence, since authentication seems
like the kind of thing that juries, in general, are competent to think about.
iii. Authenticity speaks to common understanding, which means that we should be able
to trust a jury to decide whether an object is the real thing and to ignore an item
proffered for its consideration if it believes that the item has not been shown to be
authentic.
iv. FRE 104(b) clearly contemplates that the trial judge will play only a screening
function, passing the ultimate decision on authenticity to the jury. Thus, the
proponent must offer enough proof of authenticity to enable a jury to find an exhibit
authentic.
v. Of course the opponent remains free to challenge authenticity by offering evidence in
rebuttal, in an attempt to persuade the jury to reject the exhibit as not authentic. The
jurys usual function may be preempted in a case where the evidence for or against
authenticity is so compelling as to permit only one conclusion by a reasonable jury.
In such a case, the court itself may resolve the issue.
vi. Until any exhibit has been ruled admissible, an attorney should not display it to the
jury, read its contents or ask the authenticating witness to do so, or even describe the
nature of the exhibit in too great detail when handing it to the authenticating witness.
vii. In civil cases, there are a number of discovery devices that allow parties to resolve
questions of authentication in advance of trial. Judges are not very patient with these
types of disputes in civil trials. Authentication continues to be a much more
significant evidentiary hurdle in criminal prosecutions and few authentication issues
are resolved by stipulation.
c. Questions:
i. What kind of evidence?
ii. What is the purpose for the introduction of the evidence?
d. Policy Arguments:
i. Concerned about the possibility of mistakes.
ii. Concerned about the possibilities of fraud and manipulation.
e. Traditional Steps to Authenticate and Introduce an Exhibit:
i. Having the exhibit marked for identification by the court reporter or other designated
court officer.
ii. Authenticating the exhibit by the testimony of a witness unless the exhibit is selfauthenticating.
iii. Offering the exhibit into evidence.
iv. Permitting adverse counsel to examine it.
v. Allowing adverse counsel an opportunity to object.
vi. Submitting the exhibit to the court for examination if the court so desires.
vii. Obtaining the ruling of the court.
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viii. Requesting permission to have the exhibit, if admitted, presented to the jury by
reading it to them if it is a writing or having it passed among them.
f. Application:
i. Taking Exhibits At Face Value Under FRE 901(b)(4) See United States v.
Blackwell (D.C. Cir. 1982) (approving receipt of photograph apparently showing in
hotel room holding gun like the one he was charged with possessing, despite the
governments failure to establish where the photograph was taken or what gun he was
holding).
ii. Tangible Objects See United States v. Johnson (9th Cir. 1980) (prosecutor offered
an ax into evidence; authenticating witness (the victim) identified the ax, apparently
with some hesitancy, as the weapon used to assault him; court found that, while the
identification may not have been entirely free from doubt, a reasonable juror could
have found that this ax was the weapon allegedly used in the assault; although the
jury remained free to reject the governments assertion, the requirements for
admissibility specified in Rule 901(a) had been met).
iii. Tangible Object Offered As Illustrative See United States v. Warledo (10th
Cir. 1977) (The courts have quite uniformly condemned the introduction in evidence
of testimony concerning dangerous weapons, even though found in the possession of
a , which have nothing to do with the crime charged).
iv. Chain of Custody See United States v. Howard-Arias (4th Cir. 1982) (240 bales
of marijuana were recovered from foundering ship; at trial, out of several persons
involved in the chain of custody of the marijuana, only one did not testify; the
claimed this break in the chain destroyed the authentication requirement; the court
disagreed and held that precision in developing the chain of custody is not an ironclad requirement, and the fact of a missing link does not prevent the admission of real
evidence, so long as there is sufficient proof that the evidence is what it purports to be
and has not been altered in any material aspect).
v. Police Property Room See United States v. Santiago (7th Cir. 1976) (rejecting
defense contention that evidence of narcotics should have been excluded because
many people had access to the safes, where the envelopes storing the material were
sealed and there was no evidence of tampering).
vi. Writings Circumstantial Evidence See United States v. Bagaric (2nd Cir. 1983)
(the s were convicted of RICO violations; one of the s challenged the
authenticity of a letter discovered in his home that linked him to another ; the letter
was addressed to and postmarked Asuncion, Paraguay, where the other resided;
the letter had personal salutations and references to mutual confederates; the letter
also had references to specific facts confirmed by testimony; the court held that under
FRE 901(b)(4), there was ample demonstration that the letter was in fact what the
Government claimed; the content itself can be a part of the authentication
proof).
vii. Writings Stylistic Patterns Distinctive patterns, such as spelling errors, may be
used to authenticate writings. See United States v. Larson (8th Cir. 1979) (evidence
received that misspelled approach as approuch three times in one ransom note
and previously did the same in a letter to the Pardon Board); United States v.
Clifford (3d Cir. 1983) (letters allegedly from authenticated in part by unusual
misspellings).
viii. Writings Patterns of Diction See United States v. Hearst (9th Cir. 1977) (trial
court excluded testimony by expert in psycholinguistics offered by defense in trial of
kidnapped heiress Patty Hearst as evidence that she did not author certain
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statements that she admittedly recorded, the latter having been offered by the
prosecutor as proof that she acted voluntarily in robbing the bank; reviewing court
approves the ruling, but only on narrow ground of avoiding delay and needless
cumulation).
Letterhead Stationery Is letterhead so accessible to unauthorized persons, or so
easily made up on private order, that a doctrine of authentication by letterhead
stationery is dangerous? Consider United States v. Gordon (1st Cir. 1980)
(approving receipt of certain documents on basis of evidence that on their face all
of them purported to come from J. John Gordon, the President and Senior Counsel of
the International Bank of Commerce, with a residential address at 8 Creswell Road,
Worcester, and a telephone numbered 617-754-5000, where address and phone
number matched those of the ).
Tape Recordings As a general rule, at least in the context of a criminal trial, the
proper authentication of a sound recording requires the prosecution to go
forward with respect to the competency of the operator, the fidelity of the
recording equipment, the absence of material deletions, additions, or alterations
in the relevant portions of the recording, and the identification of the relevant
speakers. Nevertheless, the trial judge has broad discretion in determining whether
to allow a recording to be played before the jury. If the trial judge independently
determines that the recording accurately reproduces the auditory evidence, his
discretion to admit the evidence is not to be sacrificed to a formalistic adherence
to the standard we establish. Here, the government witnesses testified regarding the
recorded conversation. The tape recording portrayed that conversation precisely as
they described it. See United States v. Biggins (5th Cir. 1977).
Voiceprint Analysis Compare United States v. Williams (2d Cir. 1978) (yes;
voiceprints are reliable and not misleading) with Cornett v. State (Ind. 1983) (no;
voiceprints do not satisfy standard for admissibility of scientific evidence).
Transcripts of Tape Recordings Courts sometimes allow transcripts of tape
recordings to be provided to assist the jury, particularly when portions of the tape
recording are difficult to hear. See United States v. McMillan (8th Cir. 1974) (the
transcript should normally be used only after the has had an opportunity to verify
its accuracy and then only to assist the jury as it listens to the tape; the trial judge
should carefully instruct the jury that differences in meaning may be caused by such
factors as the inflection in a speakers voice or inaccuracies in the transcript and that
they should, therefore, rely on what they hear rather than on what they read when
there is a difference; transcripts should not ordinarily be admitted into evidence
unless both sides stipulate to their accuracy).
1. What If Parties Cannot Agree As To the Accuracy of a Transcript?
Compare United States v. Onori (5th Cir. 1976) (endorsing receipt of
divergent transcripts offered by government and defense) with United States
v. Chiarizio (2d Cir. 1975) (trial judge should hold in camera hearing,
personally listening to tapes and reading transcripts and hearing the objections
of each side, before submitting the transcripts to jury).

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2. Self-Authenticating Exhibits (Rule 902)
a. Basic Rule:
i. FRE 902: Self-Authentication Extrinsic evidence of authenticity as a condition
precedent to admissibility is not required with respect to the following:
1. FRE 902(1): Domestic Public Documents Under Seal A document
bearing a seal purporting to be that of the United States, or of any State,
district, Commonwealth, territory, or insular possession thereof, or the
Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a
political subdivision, department, officer, or agency thereof, and a signature
purporting to be an attestation or execution.
2. FRE 902(2): Domestic Public Documents Not Under Seal A document
purporting to bear the signature in the official capacity of an officer or
employee of any entity included in paragraph (1) hereof, having no seal, if a
public officer having a seal and having official duties in the district or
political subdivision of the officer or employee certifies under seal that the
signer has the official capacity and that the signature is genuine.
3. FRE 902(3): Foreign Public Documents A document purporting to be
executed or attested in an official capacity by a person authorized by the
laws of a foreign country to make the execution or attestation, and
accompanied by a final certification as to the genuineness of the signature
and official position (A) of the executing or attesting person, or (B) of any
foreign official whose certificate of genuineness of signature and official
position relates to the execution or attestation or is in a chain of certificates of
genuineness of signature and official position relating to the execution or
attestation. A final certification may be made by a secretary of embassy or
legation, consul general, consul, vice consul, or consular agent of the United
States, or a diplomatic or consular official of the foreign country assigned or
accredited to the United States. If reasonable opportunity has been given to
all parties to investigate the authenticity and accuracy of official
documents, the court may, for good cause shown, order that they be
treated as presumptively authentic without final certification or permit
them to be evidenced by an attested summary with or without final
certification.
4. FRE 902(4): Certified Copies of Public Records A copy of an official
record or report or entry therein, or of a document authorized by law to be
recorded or filed and actually recorded or filed in a public office, including
data compilations in any form, certified as correct by the custodian or other
person authorized to make the certification, by certificate complying with
paragraph (1), (2), or (3) of this rule or complying with any Act of Congress
or rule prescribed by the Supreme Court pursuant to statutory authority.
5. FRE 902(5): Official Publications Books, pamphlets, or other publications
purporting to be issued by a public authority.
6. FRE 902(6): Newspapers and Periodicals Printed materials purporting to
be newspapers or periodicals.
7. FRE 902(7): Trade Inscriptions and the Like Inscriptions, signs, tags, or
labels purporting to have been affixed in the course of business and indicating
ownership, control, or origin.

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8. FRE 902(8): Acknowledged Documents Documents accompanied by a
certificate of acknowledgement executed in the manner provided by law by a
notary public or other officer authorized by law to take acknowledgements.
9. FRE 902(9): Commercial Paper and Related Documents Commercial
paper, signatures thereon, and documents relating thereto to the extent
provided by general commercial law.
10. FRE 902(10): Presumptions Under Acts of Congress Any signature,
document, or other matter declared by Act of Congress to be presumptively or
prima facie genuine or authentic.
11. FRE 902(11): Certified Domestic Records of Regularly Conducted
Activity The original or a duplicate of a domestic record or regularly
conducted activity that would be admissible under Rule 803(6) if
accompanied by a written declaration of its custodian or other qualified
person, in a manner complying with any Act of Congress or rule prescribed by
the Supreme Court pursuant to statutory authority, certifying that the record
(A) was made at or near the time of the occurrence of the matters set forth by,
or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and (C) was
made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must
provide written notice of that intention to all adverse parties, and must make
the record and declaration available for inspection sufficiently in advance of
their offer into evidence to provide an adverse party with a fair opportunity to
challenge them.
12. FRE 902(12): Certified Foreign Records of Regularly Conducted
Activity In a civil case, the original or a duplicate of a foreign record of
regularly conducted activity that would be admissible under Rule 803(6)
if accompanied by a written declaration by its custodian or other qualified
person certifying that the record (A) was made at or near the time of the
occurrence of the matters set forth by, or from information transmitted by, a
person with knowledge of those matters; (B) was kept in the course of the
regularly conducted activity; and (C) was made by the regularly conducted
activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would
subject the maker to criminal penalty under the laws of the country where the
declaration is signed. A party intended to offer a record into evidence under
this paragraph must provide written notice of that intention to all adverse
parties, and must make the record and declaration available for inspection
sufficiently in advance of their offer into evidence to provide an adverse party
with a fair opportunity to challenge them.
b. General Ideas:
i. Self-authentication does not bar counterproof by the opponent.
ii. For self-authenticating evidence, you do not need to offer any extrinsic evidence to
support authenticity unless there is counterproof to the contrary.

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c. Application:
i. The UCC In cases where the UCC is applicable, a check or a security can generally
be received as evidence that it was signed by the person whose signature appears
thereon without calling a witness to identify the signature or to provide other
evidence of authenticity.
ii. Court Transcript FRE 902(10) incorporates by reference the multiplicity of
federal statutes making certain documents presumptively or prima facie genuine or
authentic. See 28 U.S.C. 753(b) (the transcript in any case certified by the
reporter shall be deemed prima facie a correct statement of the testimony taken and
proceedings had).

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BEST EVIDENCE RULE
1. The Best Evidence Doctrine (Rules 1001-1008)
a. Basic Rules:
i. FRE 1001: Definitions For purposes of this article the following definitions are
applicable:
1. FRE 1001(1): Writings and Recordings Writings and recordings
consist of letters, words, or numbers, or their equivalent, set down by
handwriting, typewriting, printing, photostating, photographing, magnetic
impulse, mechanical or electronic recording, or other form of data
compilation.
2. FRE 1001(2): Photographs Photographs include still photographs, Xray films, videotapes, and motion pictures.
3. FRE 1001(3): Original An original of a writing or recording is the
writing or recording itself or any counterpart intended to have the same effect
by a person executing or issuing it. An original of a photograph includes
the negative or any print therefrom. If data are stored in a computer or similar
device, any printout or other output readable by sight, shown to reflect the
data accurately, is an original.
4. FRE 1001(4): Duplicate A duplicate is a counterpart produced by the
same impression as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction, or by other equivalent
technique which accurately reproduces the original.
ii. FRE 1002: Requirement of Original To prove the content of a writing, recording,
or photograph, the original writing, recording, or photograph is required, except
as otherwise provided in these rules or by Act of Congress.
iii. FRE 1003: Admissibility of Duplicates A duplicate is admissible to the same
extent as an original unless (1) a genuine question is raised as to the authenticity of
the original or (2) in the circumstances it would be unfair to admit the duplicate in
lieu of the original.
1. Buss: Photocopies are most likely to be allowed in under this rule in run-ofthe-mill cases.
iv. FRE 1004: Admissibility of Other Evidence of Contents The original is not
required, and other evidence of the contents of a writing, recording, or photograph is
admissible if
1. FRE 1004(1): Originals Lost or Destroyed All originals are lost or have
been destroyed, unless the proponent lost or destroyed them in bad faith; or
2. FRE 1004(2): Original Not Obtainable No original can be obtained by
any available judicial process or procedure, or
3. FRE 1004(3): Original in Possession of Opponent At a time when an
original was under the control of the party against whom offered, that party
was put on notice, by the pleadings or otherwise, that the contents would be a
subject of proof at the hearing, and that party does not produce the original at
the hearing; or
4. FRE 1004(4): Collateral Matters The writing, recording, or photograph is
not closely related to a controlling issue.
v. FRE 1005: Public Records The contents of an official record, or of a document
authorized to be recorded or filed and actually recorded or filed, including data
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compilations in any form, if otherwise admissible, may be proved by copy, certified
as correct in accordance with Rule 902 or testified to be correct by a witness who has
compared it with the original. If a copy which complies with the foregoing cannot be
obtained by the exercise of reasonable diligence, then other evidence of the contents
may be given.
1. Policy Argument:
a. We do not want the original versions of public documents to be
removed from their usual place of storage (floating around willy-nilly).
vi. FRE 1006: Summaries The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court may be presented in the
form of a chart, summary, or calculation. The originals, or duplicates, shall be made
available for examination or copying, or both, by other parties at reasonable time and
place. The court may order that they be produced in court.
vii. FRE 1007: Testimony or Written Admission of Party Contents of writings,
recordings, or photographs may be proved by the testimony or deposition of the party
against whom offered or by that partys written admission, without accounting for the
non-production of the original.
viii. FRE 1008: Functions of Court and Jury When the admissibility of other
evidence of contents of writings, recordings, or photographs under these rules
depends upon the fulfillment of a condition of fact, the question whether the
condition has been fulfilled is ordinarily for the court to determine in accordance
with the provisions of Rule 104. However, when an issue is raised (a) whether the
asserted writing ever existed, or (b) whether another writing, recording, or
photograph produced at the trial is the original, or (c) whether other evidence of
contents correctly reflects the contents, the issue is for the trier of fact to
determine as in the case of other issues of fact.
b. General Ideas:
i. At common law, it has long been required that when the contents of a writing are
being proven, the original writing must be offered or its absence satisfactorily
explained. This rule is commonly called the Best Evidence doctrine, but is also
known as the original writing or original document rule.
ii. Buss: Remember that the main idea for Best Evidence is that we are trying to avoid
accepting copies in lieu of the original. If, for example, the original is already in
evidence, admission of a copy does not necessarily pose a problem. In fact, it may be
desirable if, for some reason, the original has possibly been altered, and you have a
copy of it from an earlier state.
c. Policy Arguments:
i. The written word has traditionally been regarded in law as having special sanctity,
justifying more stringent proof requirements.
ii. When the contents of a writing are in issue, any evidence other than the writing itself
is distinctly inferior. The slightest variation in wording can have an enormous
significance in determining the outcome of a legal dispute. Unless a writing is very
short, it is beyond the power of most human memory to summarize the writing with
the precision that is often needed in the courtroom. The burden on the litigants of
requiring them to produce the original writing when available is viewed as
substantially outweighed by the increased accuracy of the factfinding process.
iii. Modern photocopy methods have not always been available, and historically copies
of writings have been viewed with suspicion. Thus, requiring originals is viewed as a
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convenient safeguard against either forgeries or inadvertent errors in the copying
process.
iv. Production of the original writing assures completeness and prevents any segment
from being presented out of context.
v. Examination of the original sometimes helps to resolve disputes regarding
authenticity and claimed alteration.
d. Defining a Writing, Recording, or Photograph:
i. Inscribed Chattels Wide discretion is vested in trial judges to determine on the
facts of each case whether the Best Evidence doctrine should apply to inscribed
chattels. See United States v. Duffy (5th Cir. 1972) (prosecutor offered into a
evidence testimony about a white shirt imprinted with a laundry mark reading D-UF; the shirt had been inside a suitcase found inside the trunk of a stolen car; the shirt
itself was not introduced, and the objected under the best evidence doctrine; the
court found that the policy justifications behind the best evidence rule were not
implicated here; there was no risk of misunderstanding or inaccuracy in relating the
writing since this was such a simple message; however, the court decided the case on
another basis, holding that [w]hen the disputed evidence, such as the shirt in this
case, is an object bearing a mark or inscription, and is, therefore, a chattel and a
writing, the trial judge has discretion to treat the evidence as a chattel or as a
writing.; further, the shirt was collateral evidence of the crime). Similar questions
may arise when testimony is offered regarding the number on a police officers badge
or a license plate, the words on a tombstone or traffic sign, the odometer reading on
an automobile service sticker, the words on a certificate or sales receipt, or the serial
number on a manufactured product.
1. BUT even if the Best Evidence doctrine is found to apply, courts can excuse
non-production under the collateral writing exception of FRE 1004(4) if the
inscription is sufficiently tangential to the dispute.
ii. Painting, Sculpture, or Drawing See Seiler v. Lucasfilm (9th Cir. 1986) (Best
Evidence rule applies to drawings).
e. Defining an Original:
i. General Idea:
1. In determining which writing is the original, consideration must be given to
the elements of the charge or claim, the intention of the parties, the
surrounding circumstances, and the purposes of the party offering the writing.
ii. Examples:
1. United States v. Rangel (8th Cir. 1978) (photocopies of customers carbon
copies of Master Charge receipts were the originals when they were the
documents submitted in support of a false claim for government travel
expenses).
2. Cartier v. Jackson (10th Cir. 1995) (copyright infringement action alleging
that Michael Jackson appropriated to his own use a song from a demo tape
sent to him by ; demo tape and not first-recorded master tape was
original for purposes of this litigation because it was only tape heard by ).
f. Use of Duplicates:
i. General Ideas:
1. FRE 1003 permits the use in evidence of duplicate[s] without need to make
excuses for non-production of the original under FRE 1004, but only if it
meets the definition of a duplicate set forth in FRE 1001(4).
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2. A duplicate is almost as usable in evidence as an original, but not quite, for
FRE 1003 contains two escape clauses, permitting exclusion of duplicates
when concerns arise over authenticity of the original or under the
circumstances it would be unfair to admit the duplicate.
g. Application:
i. Collateral Writings See the Advisory Committee Note to FRE 1004(4)
(examples are the newspaper in an action for the price of publishing s
advertisement, and the streetcar transfer of claiming status as a passenger). See also
United States v. Johnson (5th Cir. 1970) (alleged receipt and concealment of stolen
motor vehicle; no error to allow FBI agent to testify that vehicle registration papers at
courthouse did not match vehicle with that license number observed in front of s
house, resulting in further investigation an discovery that vehicle was stolen: This
item was not proof of identity but simply served to explain the reason for the agents
subsequent inspection, which did furnish conclusive [proof of] identity.). See also 5
C. Mueller and L. Kirkpatrick, Federal Evidence 580 (despite its vagueness, the
collateral writings exception is useful in preserving flexibility in administering the
best evidence doctrine, enabling the trial judge to protect continuity and flow in the
presentation of testimony and to avoid unnecessary distraction and delay the
exception is a necessary concession to expedition of trials and clearness of
narration).
ii. When the Best Evidence Doctrine Applies Only when a party seeks to prove
the content of a writing.
1. Two Situations:
a. Substantive Law When the substantive law forces the content of the
writing into prominence, e.g., the parol evidence doctrine, the statute
of frauds.
i. The effect of the substantive law is to force the parties to prove
content, and then the Best Evidence doctrine steps in to require
production of the document itself, as the proper means of
proving content.
b. Party Strategy When a party chooses to prove content, even though
he might theoretically present an adequate claim or defense without
such proof.
i. E.g., see Baker v. Elcona Homes (6th Cir. 1978) ( sought to
prove that a car ran a red light and offered as proof the accident
report prepared by the police; as long as chose to rely on the
report as proof that the light was red for the car, the Best
Evidence doctrine required it to offer the report itself).
iii. When the Doctrine Does Not Apply When the matter to be proved has been
incidentally recorded, but in which neither substantive law nor party strategy
actually forces the writing into prominence.
iv. Standard of Review Even if a trial court erred in admitting evidence that was not
the Best Evidence, e.g., employer testifying orally to the defamatory nature of a
letter, the reviewing court would have to be shown a distortion or misrepresentation
of the words, such that the admission of the evidence was more than harmless error.

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