EVIDENCE

I.

Relevancy & Circumstantial Evidence

A. Introduction

FRE 401: RELEVANT PROOF

(1) Any tendency
(2) Consequential facts material
(3) More probable
Example: King Solomon Story made his statement to elicit a reaction.
Evidence/Proof

Issue/Proposition

Response/Reaction

Who is the biological/better mom?

Evidence is only relevant with respect to an issue

Hypo: Workmans comp case. Plaintiff injured on job. Employer proves worker was
drunk and inattentive. Is that relevant? No, because theres strict liability here.
Comparative negligence is NOT a defense. This does not go to the issue.
Hypo: but what if he was seen playing pickup basketball the day after? This is
relevant to the issue of damages.
Hypo: Defendant prosecuted for statutory rape. Defendant offers proof that the
victim showed him ID that said she was 20. This is irrelevant. There is strict
liability here and that is a mistake that the court does not recognize.

Hypo: Plaintiff wants to prove defendant has insurance. What would be the logical
inference? If he gets into an accident, he doesnt have to pay. Maybe he will be more
reckless.
Hypo: Serial rapes defendant arrested. Rapes cease. Prosecutor wants to
introduce evidence that upon custody these rapes stopped. This evidence is not
relevant and fails the 403 balancing test because prejudice outweighs the probative
value.
Relevance is not inherent. It comes from its relationship to the issue.
If a judge doesnt make the right decision regarding evidence, it is an abuse of
discretion. A judge admits evidence and the jury assigns value to that evidence.
Put everything on the record if its not on the record, you CANNOT appeal it and
youve waived it.
FRE 402: ADMISSIBILITY FOR RELEVANT EVIDENCE
All relevant evidence is admissible UNLESS it violates another rule. Irrelevant
evidence is not admissible.
Knapp v. State: Proof in the form of a statement. Defendant was arrested and killed
the marshal. Claimed that the marshal was very aggressive and heard a story that
he beat an old man to death while arresting him. This evidence bolsters his claim
that the marshal is very violent. If he thought that during arrest reasonable fear
of bodily harm (self-defense for murder).
Hypo: Man kills girlf in a fit of passion/extreme emotional disturbance. Says that he
killed her because she told him she was pregnant. Prosecutor calls a medical
examiner. They exhume the body and show that she was not pregnant. Compelling
evidence can mitigate a charge.

Direct Evidence eyewitness, no intervening evidence

Circumstantial Evidence must make inferences (ex: res ipsa loquitor)
Real Evidence an actual object (ex: weapons, drugs, etc.)
Hypo: 4 am burglary. Two men near the back door, one with a crowbar. Man moves
away quickly when someone passes. Man #1 (with crowbar) Direct Evidence, hes
toast. Man #2 (moved away) Direct? No. Circumstantial? Yes. (Flight evidence
infers guilt!) Is Man #2 guilty? He could just be walking by
Hypo: Rainy night, man has what appears to be a machine gun. Police find the
machine gun behind a garbage can and the man is wearing a bulletproof vest. They
arrest him under constructive possession. Look to the machine guns condition:
Dry? Wet? If wet, clearer evidence that he just threw it. Also why is he wearing a
bulletproof vest? Analogize this to a knight with a sword and shield. However, if
bulletproof vest is found later at his house with a warrant, this is less convincing.

TEST FOR RELEVANCY:

Does it have any tendency to make the issue/proposition more probable?
Hypo: Admissibility of gang membership, looking at tattoos. Or a tattoo that says
12 gauge on someone who is accused of a shotgun murder. These are OK.
Hypo: Person living a lavish lifestyle could prove motive or something else.
Hypo: Car accident. Sunglasses found at the intersection. Are they admissible?
Test for relevancy. Does it have any tendency to make it more probable? What
inference can you draw from stopping short? Sunglasses could have fallen off when
stopping short.
FRE 403: EXCLUDING EVIDENCE BALANCING TEST

If the probative value is substantially outweighed by unfair prejudice,

confusion, misleading the jury, delay, etc. it may be excluded.
Ballou v. Henri Studios: Jesse Ballou collides with Henri Studios truck, killing him.
Motion in limine to prevent evidence that Ballou was drunk. Henri Studios wants it
to be admissible (goes to negligence). Ballou provides nurse witness who was close
to him and says he didnt seem drunk. Record shows .24 BAC and the test seemed
to be fine. Trial judge said test was prejudicial and not reliable. Whether Ballou
was drunk goes directly to the issue of negligence. The probative value of Ballou
being drunk must substantially outweigh any unfair prejudice that the jury might
infer from Ballou being drunk behind the wheel. In Ballou stipulate to the chain
of custody for the blood test, ascertain that it was properly tested, etc.
Smith v. Rapid Transit: Bus made a lady veer off the side of the road. She sues this
company with evidence that this company goes on that road at that particular time.
She doesnt know 100% which bus. The judge gave a directed verdict for defendant.
There is no evidence in this case. Should interview a gas station attendant and do
some investigation. Probability alone is not preponderance of the evidence.
Hypo: Witness sees a bank robbery. A bearded, mustachioed black man and a white
woman get into a yellow car. The man has facial hair and the woman has a blonde
ponytail. They are found and charged with the robbery. Mathematics professor
(expert) does a statistical analysis of all the factors individually. The final
probability of all of these factors together is 1 in 1.2M but these variables are
overlapping and are not arbitrary and individual.
Hypo: D kills Ps husband in a car accident. D admits liability. P offers evidence
that D was driving drunk and that H was thrown 80 ft when the car hit him. Is
evidence that D was drunk relevant? Not really, D already conceded liability, but it
goes to punitive damages.

Hypo: D rear-ends Ps car, injuring P and killing Ps wife. P seeks damages for
emotional trauma resulting from his presence at the scene. P testifies that he did
not see his wife after the impact because he was KOed. D admits liability. P
proffers pictures of body, autopsy report, etc. P wasnt conscious at the time, so
pictures are irrelevant to the issue of emotional trauma.
Hypo: D is charged with the sale of MJ. Prosecutor introduces evidence that with
an informer (I) & a police officer (PO) bought some MJ from D. D says he was
framed and that PO had I plant the drugs. D wants to introduce evidence that he
had filed a false arrest suit against the police from an arrest 9 months prior
(attempting to prove a vendetta against him). The false arrest proves a potential
motive against D.
Hypo: X is charged with the sale of heroin. A, an undercover police officer, testifies
that she purchased heroin from X at 8 pm on Jan. 30, which was six months before
Xs arrest. Xs defense is an alibi that he was at the movies at that time and it was
raining that night. Xs wife corroborates. X calls the manager who testifies that the
movie was shown on that date and for a whole week. A meteorologist confirms that
it rained during that time, but only on that night and not any other night that week.
This is not very strong evidence. You need something to corroborate. Does manager
remember selling to X? Does he have a ticket stub? Jury will likely see through
mere testimony about facts.
Hypo: D forges a check and uses it to get cash from V, a grocer. D cashed the check
with a forged signature. The check was returned because the account requires two
signatures, not one. D offers evidence that he made restitution to V a week after the
incident. This could possibly show that there was no mens rea and is only relevant
to the issue of punishment, not to the issue of guilt. Restitution does not make D
less guilty.

B. Authentication
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FRE 901: AUTHENTICATING OR IDENTIFYING EVIDENCE

The proponent must produce evidence sufficient to support a finding that the item is
what the proponent claims.

(Examples: testimony of a witness with knowledge, non-expert opinion about

handwriting, comparison by an expert witness or the trier of fact, distinctive
characteristics, opinion about a voice, public records, etc.)

FRE 902: EVIDENCE THAT IS SELF-AUTHENTICATING

The following types of evidence require no extrinsic evidence of authenticity in
order to be admitted: sealed and signed public documents, signed and certified
public documents, foreign public documents, certified copies of public records,
official publications, newspapers, etc.
-very low standard, sufficient to convince a reasonable juror to be what it
purports to be
1. is it a document
2. is it self authenticating
3. if its not, authenticate it
Example: Is this a clear and accurate representation of the parking lot?
Hypo: Handwritten note found in victims apartment that contains a threat.
Circumstantial evidence from this:
(1) Does handwriting match defendant?
(2) Expert on handwriting
(3) Anything in it that IDs author?
Hypo: Facebook posting contains a threat. Witness at trial wants to use it to bolster
the guilt. Cant show what computer it came from. Someone else could have done
it. There is a big issue authenticating postings online.
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BEST EVIDENCE RULE -Rule 1001- must be an original writing/document- extends to

recordings, photographs, etc.
1. Witnesses cannot testify as to what a document says- need to produce the
document (recollection of its contents is not the best evidence, prevent
fraud/inaccuracies) i.e. cannot ask witness what an x-ray film shows- need the
actual film.
2. Certain exceptions- license plate or badge #'s
Judicial Notice takes away proof completely
-judge takes notice of a fact and acknowledges that it is widely known or capable of
being proven by an impeachable source (such as a phone book or almanac, weather,
temperature)
-geographical territorial jurisdiction (a judge in florida cant take notice of something
in new york)
-if a judge in florida is given a map i.e., has the source in front of him, he can take
judicial notice of it

C. Character
Character evidence consists of character traits and particularities.
Examples:

Mike Tyson bites peoples ears off & is aggressive/violent

Bill Clinton womanizer

3 Ways of Proving Character

(1) Specific Instances Examples: broke a chair while angry, criminal record
of assault (got into a fight in traffic), etc.
(2) Reputation general consensus in the community of what this person is
like, what people think
(3) Opinion your sole opinion
Hypo: Person is very generous. He has a reputation for being very generous and
others personally think he is very generous. The strongest proof of his character is
a specific instance, such as a giant tip on a dinner bill.

Cleghorn v. New York Central: Switchman is working while drunk and causes an
accident. The drunkenness on THAT DAY is relevant on other days, not as
relevant. Issues: (1) negligence on date of accident, (2) punitive damages. Admitting
evidence that the switchman was drunk could lead to prejudice which may outweigh
the probative value. (Jury could think theres a high probability he was drunk or
they could dislike people who are drunk on the job.) Here, character was an
essential element for proving punitive damages so it was allowed in.
Cannot use prior proof to prove a character trait just because youve done
something in the past does not mean that youre doing it again
FRE 105: LIMITING INADMISSIBLE EVIDENCE FOR OTHER
ISSUES/PARTIES
The court must restrict evidence to its proper scope and instruct the jury
accordingly.
Proof can be used for one issue and not for the other. This proof is not admissible to
prove negligence, but is admissible to prove damages. This is confusing for a jury to
ignore a certain fact for an issue, but it has to be done for judicial efficiency.

FRE 404(a): CHARACTER EVIDENCE

Evidence of a persons character or character trait is not admissible to prove
action in conformity/propensity/predisposition.
Hypo: P sues D in a wrongful death action arising out of her husbands death. P
testifies that she and H had a happy marriage. D proffers evidence that for a few
years H left P and lived with another woman and that H was convicted of bouncing
checks. D says that this evidence establishes Hs character traits for immorality and
dishonesty and that these traits are relevant to the issue of pecuniary value of Hs
companionship to P. P has made Hs character an issue by suing for loss of
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consortium, so this proof is OK. This falls under the 405(b) exception. Judge can
use 403 Balancing Test to withhold certain information (such as why H left for a few
years) but it probably wont do much.
Michelson v. United States: Defendant convicted of bribing a federal revenue agent.
The issue here is mainly credibility. The defense attorney called a series of
witnesses to discuss defendants reputation to show that he is credible, truthful, and
law abiding.
When defense mentions defendants prior conviction prosecution will definitely
bring it up, so better to do it first to control the story.
Defendant must first bring in character evidence. The prosecutor cannot initiate
character evidence.
6 Places Where Character Evidence Is Admissible

IDVOXS
(1) ISSUE
-

405(b) essential element

usually when it goes directly to damages
Cleghorn exception

(2) DEFENDANT
- 404(a)(2)(A), 405(a), 405(b)
- circumstantial evidence
- ONLY in criminal cases, giving defendant a chance to prove himself
- Michelsen rule
(3) VICTIM
-

404(a)(2)(B), 405(a), 404(a)(2)(B)(ii)

ONLY in criminal cases, proving a reputation or opinion
ONLY in a homicide case defendant tries to prove victim was 1st
aggressor (self-defense) then prosecutor can call a character witness to
prove peacefulness
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FRE 412 Exception: bars criminal defendant from alleging victim of

sexual offense was promiscuous. Rape Shield no slut shaming!

(4) OTHER CRIMES

-

404(b)
Cant use it to show action in conformity but it can be used for proof of
motive, opportunity, intent, preparation, plan, etc.
404(b) Proper Purposes:
(1) Knowledge
(2) Intent
(3) Preparation
(4) Plan
(5) Opportunity
(6) Motive
(7) Identity
(8) Absence of Mistake or Accident

KIPPOMIA
(5) X-EXAM WITNESS
-

607, 608, 609

Proving credibility and truthfulness

(6) SEX
-

Defendant was previously convicted of a sexual misconduct crime

Hypo: A key witness in a narcotics trial (LES woman) is killed. She is approached
by a man who says he is looking for the man who assaulted his wife. Woman calls
her boyf to contact the police and he hears the mans voice on the other end. She is
found strangled. A voice recording is played and boyf confirms its the same voice
(identity issue). Man implicated here had been arrested for rape 6 other times and
had used the same story. This is highly prejudicial.
Key Questions for Using Character Proof
(1) Is this character proof? Yes.
(2) Whats the purpose? Identity.
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(3) Is it necessary? Yes, there is not enough proof without, theres no DNA.
If yes, THEN
Use 403 Balancing Test balancing prejudice and probative value. Here,
without this evidence, there is NO case. The probative value outweighs the
prejudice.
Hypo: Defendant is charged with stabbing girlf in the chest. One month before, he
threatened to throw her off the roof of a building. He is charged with felonious
assault. The issue here is intent. This evidence DOESNT work. Its erroneous and
very prejudicial. It fails on the third prong: it is not necessary.
(In NY, evidence of uncharged crimes is regarded as Molineaux evidence and
requires a preliminary hearing.)
United States v. Carrillo: Two prior arrests for drugs in balloons in his mouth. This
evidence would go to the issue of identity. It cannot be used to argue
conformity/propensity to sell drugs. Instead its being used as a certain method that
Carrillo sells drugs to identify him. Its weak a lot of drug dealers use balloons.
Test: Is it relevant on the issue of identity? Use balancing test prejudice vs.
probative value.
Tucker v. State: Man allegedly woke up and found a dead guy. This had happened to
him once before so this time hes charged with the murder. Court refuses to
accept evidence of prior uncharged crime. No proof that it was him.
Hypo: Drowned brides 5 brides from 5 marriages to the same man have all been
drowned in a bathtub. Highly suggestive that he is the killer. This evidence could
go to plan of the Other Crimes exception. (Nevada court uses clear & convincing
standard of proof but this varies by state.)

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Supreme Court has ruled that acquittal of an earlier crime does NOT invalidate
it as evidence. Prosecutor must show reasonable notice so that the other side can
protest if they want.
Hypo: Steerer shows people where to buy drugs and is arrested. Would the
admissibility depend on the theory of the prosecution? What if the defense is that
the defendant wasnt there? Defendant argues that he told person where to get a
sandwich, not drugs (this goes to intent). If defendant engaged in that conduct
before, that proves his intent.
Hypo: Defendant commits robbery in State X. In the course of the hold up, he
shoots his gun. A week later theres another robbery in an adjoining state they
find an abandoned car that they can connect to the gun. Gun was used in the first
robbery. Witness in the first robbery is shaky in his ID of the defendant. Can you
introduce proof of the second robbery? NO, proof of the second robbery only shows
that he is predisposed to commit robberies. Main issue here is identification. The
gun is admissible. The gun found was the gun used in the first robbery and it was
found in the robbers abandoned car.
Huddleston v. United States: Charged with possessing stolen property (1) property
is stolen, (2) possession of property, (3) knowledge. Defendant had stolen VHS
tapes. The main issue is proving knowledge that they were stolen to prove criminal
intent. 2 similar prior crimes a lot of TVs, and a lot of appliances sold to an
undercover agent. There is no proof that the TVs were stolen but a jury could find
that they were stolen. No receipts, etc. Under 104(b), evidence can be sought to
prove the transaction, even though theres no proof the TVs are stolen. They need
an assumption that they were stolen.
FRE 104(a): PRELIMINARY QUESTIONS
Court decides any preliminary question about whether a witness is qualified, if
there is a privilege, or if evidence is admissible. Goes to proper purpose &
foundation
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FRE 104(b): RELEVANCE THAT DEPENDS ON A FACT

If evidence depends on whether a fact exists, proof must be introduced sufficient to
support a finding that the fact does exist.
Hypo: D is charged with possession of MJ with intent to sell. Prosecution produces
evidence that 35 MJ plants were found in Ds backyard. D testifies that he thought
they were weeds. Prosecution offers that 15 years earlier, D sold MJ to an agent.
This is character evidence other crimes. KIPPOMIA: proper purpose
knowledge. The prosecutor will try to prove with this evidence that D knows what
weed looks like.
Hypo: D is accused of a bank robbery. Prosecution wants to put in that D is a drug
addict. This is character proof that could go to motive. However, if drug habit is
$1/day, not OK (de minimis). If drug habit is $10,000/day, then its a clear motive.
Hypo: D is accused of murdering V. Prosecution wants to admit that a week earlier,
D murdered Vs cat. Character proof personality goes to intent/motive. He
doesnt like V and wants to harm V.
Hypo: D is charged with assassinating the President. Prosecution wants to put in
that not long after the assassination, D shot a police officer when the officer stopped
D for a traffic violation. Could possibly go to identity.
Hypo: D was required to live in a halfway house. They are allowed to go to work
during the day, but in the evening they must sign in and stay for the entire night.
On Oct. 10 during the day, an armored truck was robbed very close to the halfway
house. D is charged with that crime. Prosecution wants to introduce that D is a
convicted sex offender and had to return to the halfway house in the evening and he
didnt that night. Sex offender part should be removed, as that is highly prejudicial.
Facility is close to place of crime and we know that he didnt return, so this could be
useful to prove identity.
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Hypo: D is accused of armed robbery. Victim picked D out of a line-up but at trial
she concedes shes not sure hes the robber. To show identity, prosecution offers
evidence that D committed 3 previous armed robberies in the past 6 months. It
points to the word identity in Rule 404(b) and argues that it is not required to
show any special similarity in the robberies. Inadmissible, must show it is Ds
handiwork. On these facts, this evidence only serves to show propensity.
Hypo: D is charged with murder arising from a barroom brawl. In its opening
statement, the defense states that the evidence will show the alleged victim was the
first attacker and that D acted in self-defense.
(1) D offers evidence that V previously had a bad reputation for violence.
Admissible? Yes, can show V was the first aggressor.
(2) D offers evidence that V previously shot someone in a fit of road rage.
Admissible? No, this is a specific instance (only reputation or opinion is
allowed).
(3) D offers evidence that weeks before the incident, V attacked D in a fit of road
rage. Admissible? Yes, this is a specific instance, but it shows motive, under
404(b) direct proof of the motive of the victim.
(4) D offers evidence that weeks before the fatal incident, he heard that V shot
someone in a fit of road rage. Admissible? Yes, it may show Ds reasonable
fear (Knapp).
(5) After judge has admitted evidence about the bad reputation of V for violence,
prosecution evidence of the bad reputation of D for violence is admissible,
even if D has not offered any evidence of Ds own good character. True, 404(a)
(2)(B)(ii).
Hypo: X, a prison inmate, is charged with aggravated assault upon A, a fellow
prisoner. Prosecutions case is that X and B, another inmate, assaulted A & stabbed
him numerous times. Xs defense is that his only part in the fray was to break up a
fight between A and B. X calls Y, an inmate who did not witness the fight, to testify
that he has known X for one month and that, in his opinion, X is a nonviolent man.
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The prosecutor makes an inadmissible character evidence objection to Ys proposed

testimony. Result? One month might not be long enough to know someone
however they are cellmates and know each other pretty well. He cannot discuss
specific instances, but the prosecutor can ask him about any specific instances on
cross examination.
Hypo: X is charged with 1st degree murder of A, a police officer. B, a police officer,
testifies that he was with A in a police car and that they stopped X, who was driving
erratically, A asked X to step out, A asked X to raise his hands to check for weapons,
but then X drew a gun and began firing, and that A was hit and died the next day,
and that B was able to disarm X and put him under arrest. Prosecution offers
evidence that (a) X was on parole from a felony sentence in Illinois and his presence
in California was a violation of his parole; (b) 7 days before the charged offense X
committed armed robbery of a market in Denver, Colorado; (c) the car X was driving
was stolen from a San Francisco car dealer 3 days earlier. Prosecutor announces
that he is offering the above items of evidence on the issues of motive, intent, and
premeditation. X makes an irrelevancy and inadmissible character evidence
objection. Result? Proof is pretty prejudicial. Is there any basis for admitting the
proof? Nefarious conduct provides a motive for the killing. This is an accumulation
of bad conduct.
Hypo: X is charged with grand theft from A. Xs defense is an alibi. A testifies that
he is 85 years old; that X approached him on the street, said he was celebrating the
birth of a boy, put his arm around A, offered him a cigar and then left; and that
immediately thereafter A noticed his wallet from his hip pocket was missing.
Prosecutor calls B and makes an offer of proof that he will testify that he is 84 years
old; that 2 months after the A incident, he was approached on the street by X who
told him the same story, and the same thing happened. He tried to run after X but
was unsuccessful. Prosecutor states that this testimony is offered on the issue of ID
to prove MO and common scheme or plan. X makes an irrelevancy and inadmissible
character evidence objection. Result? This is a very distinct common scheme and
clearly shows handiwork and an MO.
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Hypo: X is charged with murder of A. Xs version of events is that A, who lived in

the same apartment building, was visiting X. They had an argument and A took a
karate stance and sprang at X. X wrestled A to the floor and stomped his foot in As
stomach. A died from injuries 2 weeks later. Prosecutor offers the following
testimony: (1) testimony of B - 2 months before Xs fight with A, he and X had a
drunken fight, where A kicked him in the ribs and that X pleaded guilty to assault
and battery; (2) the testimony of C that he was a longtime acquaintance of X; that a
year before Xs fight with A, X and several others knocked C down without reason;
and that X then kicked him in the stomach. Prosecutor says that he is offering this
to establish Xs MO to use his feet in a fight. X makes an irrelevancy and
inadmissible character evidence objection. Result? 2 prior instances are character
evidences. Can introduce specific instances for a proper purpose plan? Doesnt
really fit they are just using this to prove propensity.
Hypo: A sues X and Y Bus Company for damages for personal injuries suffered in a
collision between a bus driven by X, an employee of the Y Bus Company, and a car
driven by A. A claims that X failed to stop at a stop sign. A calls B, who testifies
that he has been a regular and daily rider on the bus driven by X during the 6
month period before the accident, but he was not on the bus the day of As accident.
A asks B whether in this 6 month period, X habitually failed to come to a stop at the
intersection where the accident took place. X and Y Bus Company make an
inadmissible character evidence and a habit evidence objection to As question.
Result? Character trait might be negligent driver or reckless or careless. This
doesnt really cover or relate to character. This is a habit

D. Habit
FRE 406: HABIT
(1) Regular routine practice could be reflexive or just the regular way
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(2) No corroboration necessary

(3) No eyewitnesses necessary
Foundation Question: Does it happen often enough to be considered a habit?
Habits must be proved by specific instance. If a person has that habit, you can
prove what they will probably do in the future.
Perrin v. Anderson: Perrin goes crazy when cops come to his house to question him
after a car accident. Police wanted to prove he had a prior history of scuffles. This
civil case had a criminal aspect at the heart of it, so proving character of the victim
was permitted (usually only OK for criminal cases 404(a) rule). Proof of character
here was specific instances. Ct used 404(a) (wrong rule) but it would have been
admitted under 406 anyway. 5 instances are usually insufficient, but the judge
withheld other witnesses as to not prejudice the jury.
Hypo: Longhair running from the bank has $ from robbery. Witness says around
time of robbery, D left his building and was wearing a ponytail. This is one specific
instance. If he wore his hair like that every day then its a habit.
Halloran v. Virginia Chemicals: Freon exploded. VA Chemical claims Halloran puts
a coil in the water (very dangerous). Halloran denies this. VA Chemical will try to
establish a habit with enough specific instances. FOUNDATION Q: Want to prove
this is a course of conduct.
Hypo: A skateboarder grabbing onto a bus not in control of the bus, so this is
NOT a habit.
Hypo: Lawyer in a malpractice suit forgot to tell the client something before he pled
guilty. It can be considered a habit if a lawyer has a list of things he consistently
says.

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E. Prior Sexual Conduct

FRE 412: RAPE SHIELD VICTIM
In a sexual misconduct case, cannot use evidence offered to prove that a victim
engaged in other sexual behavior or evidence offered to prove a victims sexual
predisposition.

Exceptions for Criminal Cases: specific instances of sexual behavior to prove

physical evidence, specific instances of sexual behavior with defendant, if
offered to prove consent (or if offered by the prosecutor), and anything that
violates defendants constitutional rights.

Exceptions for Civil Cases: evidence offered to prove victims sexual behavior
or sexual predisposition if its probative value substantially outweighs
the danger of harm to any victim and of unfair prejudice to any party.
Victims reputation is only admissible if the victim places it into
controversy.

State v. Cassidy: Defendant is charged with rape and he claims victim started
screaming about Vietnam. Defendant wants to introduce victims prior sexual
conduct to include a similar instance.
Victim lies about never having sex before. Contrary evidence can be introduced for
impeachment in a civil case under FRE 412(b)(2) balancing test.
Exceptions to the rape shield have hearings according to FRE 412(c) and for victims
privacy all records and materials are sealed.
Hypo: Defendant is charged with rape and has strong proof that victim isnt telling
the truth (false accusation). Lawyer has forgotten to file the motion for the 412
hearing but wants to introduce proof of prior sexual conduct. The lawyer CANNOT
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enter this proof. The evidence is precluded due to non-compliance. Judges will let
defendants suffer for their lawyers malpractice.
(In NY slightly different its OK to introduce that victim has been convicted of
prostitution, since prostitutes cannot be raped. Crazy messed up.)
Olden v. Kentucky: Starla claims that 2 defendants raped her. She is not a good
witness and changes her story multiple times about who she lives with and other
details. She tells boyf when she gets out of car that the 2 defendants raped her.
Defense theory is that she lied to protect her relationship. Defense must prove that
she is living with boyf (impeaches her testimony) and that she has a motive to lie.
Judge said it would prejudice the jury to know victim was in an interracial
relationship. However, you cannot take away defendants 6th amendment rights to
confront all witnesses against them.
FRE 413: SIMILAR CRIMES IN SEXUAL ASSAULT CASES
In a criminal case, the court may admit evidence that the defendant committed any
other sexual assault. It may be considered on any matter to which it is
relevant. Prosecutor must disclose this (and any statements or testimony) to the
defendant at least 15 days before the trial (to give the defense time to prepare).
FRE 414: SIMILAR CRIMES IN CHILD MOLESTATION CASES
Same as sexual assault rule.
FRE 415: SIMILAR ACTS IN CIVIL CASES
Same as FRE 413 & 414, but offered in a civil case involving a claim for relief based
on a partys alleged sexual assault or child molestation.
Judge has full & complete 403 Balancing Power and can overrule any of these.

F. Similar Happenings
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THIS IS NOT CODIFIED.

Simon v. Kennebunkport: Lady falls on sidewalk and claims that her injuries were
caused by the sidewalk. P is trying to introduce proof from biz owners in front of
sidewalk 100 people have fallen before. She could attempt to prove condition of
sidewalk to show it was the cause of the accident. Show the town is negligent if they
had NOTICE. Petition about sidewalk is admissible because it shows the town had
notice.
Hypo: Accident in front of Pace. Motorist driving very fast strikes pedestrian.
Motorist claims the person jumped out. Now in North White Plains same car is
seen speeding. Car was continuously speeding so this is a continuing condition.
Hypo: Little girl gets hit by a branch on the dragon coaster at Rye Playland. Family
sues for negligence. Playland claims they maintain the coaster and they are trying
to prove the absence of prior happenings. However, trees grow and change.
Hypo: A fell on a veranda on a golf course while she was wearing spikes on her golf
shoes. 50K people have walked here and nobody has fallen. This is an isolated
incident. We dont know anything about those 50K people (i.e. what shoes, what
kind of weather that day). This is OK though, the jury would want to know this
information.

G. Subsequent Precautions
FRE 407: SUBSEQUENT REMEDIAL MEASURES
Measures taken that would have made an earlier injury or harm less likely to occur
are not admissible to prove negligence, culpable conduct, a defect in a product,
or a need for warning/instruction. The court may admit this for another

20

purpose: (1) impeachment, (2) proving ownership, (3) feasibility of

precautionary measures.

Feasibility could you have done it? Claim: we couldnt do it infeasible.

Hypo: Fell in a hotel showers, hotel then installed guardrails. Are they conceding
the showers are unsafe? NO. They are just doing things to make things safer.
Policy concern dont want to punish people from making things safer.
Tuer v. McDonald: Medmal, doctors stop Heparin early on heart surgery patient
because surgery gets postponed. He dies. Was it feasible to restart the Heparin?
Too vague. Would it have been unsafe to restart the Heparin after the
postponement? Yes, it would have been unsafe under the standard of care
applicable at that time. Prepare your witness with the proper answer avoid
feasibility.
Hypo: Woman is raped in a motel. There are no peepholes but there are windows.
After the assault the hotel installs peepholes. It would be helpful to include this
fact. The hotel previously decided not to install peepholes because police said these
would give a false sense of security. Manager wasnt saying this was infeasible it
just wouldnt have done any good.
Hypo: Gersh is a member of Hells Angels. He falls off his motorcycle and lands on
his head. He fell off the bike due to an issue with the struts causing it to wobble.
The company changed the machines after the accident. Courts would not allow this
evidence in.
Impeachment showing that testimony should not be trusted by the jury.
Subsequent remedial measures can impeach a witness.
Hypo: A sues X for damages for personal injury arising out of As slip & fall on steps
in Xs store. A testifies that a strip of abrasive tape on the step was worn, and that
the step was slippery. X calls B, the store manager, who testifies that the tape
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strips were not worn and the steps were not slippery. In rebuttal, A offers to prove
that a week after the accident, X replaced the strips of tape with new ones and
offers a picture. X objects on the policy exclusion of evidence of subsequent remedial
measures. Proof of replacement doesnt detract from Bs testimony. This doesnt say
who authorized the strips to be replaced. Maybe the strips are replaced once a year.
Hypo: A adds that B (store manager) was the person who authorized installation
of the new tape strips after the accident. This detracts greatly from Bs testimony.
Why replace the strips if they are safe?
Hypo: P Savings Co. sues D Bank for damages arising from embezzlement by M
($500K). M placed the funds in a personal acct in D Bank. P retained X (accting
firm) to audit P Savings Co. D argues P was negligent in its accounting/auditing
procedures. P changes procedures after the report. D wants to make a discovery
motion to inspect and copy Xs report. This is discoverable but not admissible.
During discovery everything is open.

H. Offers in Compromise
FRE 408: COMPROMISE OFFERS & NEGOTIATIONS
Evidence of offering (or accepting) a compromise or negotiations to
compromise and conduct or a statement made during compromise negotiations
about the claim to prove or disprove the validity or amount of a disputed claim
or to impeach by prior inconsistent statement or contradiction is NOT
admissible.

This is admissible when in a criminal context (plea bargains, etc.)

This can be admissible to prove another purpose (bias, undue delay, or
obstructing criminal investigation).

Policy Reason encourages people to settle and judicial efficiency.

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Davidson v. Prince: Cow gets loose and charges Davidson. He says the cow was 10 ft
away in a letter but then 40 ft during his depo. He tried to exclude letter saying
that it was an offer to settle. It was not, so it was allowed in to impeach his
testimony.
Hypo: A gets into a car accident with B. A attempts to settle with X, a passenger in
Bs car. A then calls X as a witness to say it was all Bs fault at As trial against B.
This is a bias. If X is happy with her settlement, her testimony could be swayed.
Hypo: A is involved in an accident and flees the scene. As lawyers approach the
only witness and offer $10K if the witness refuses to cooperate. This is an
obstruction of justice and not OK.
Hypo: A sues X & Y Bus Co. for damages for personal injury. X says, I know I blew
the stop sign, will you take $100? I know the company will pay that much. This is
not a settlement negotiation as it doesnt go to the validity or amount of the
disputed claim. This is just an admission.
Hypo: A sues X Ins. Co. for damages for IIED. A has disability insurance with X,
which provided for monthly payments of $150/month until a total of $2,500. X stops
payments & seeks cancellation on the grounds that A misrepresented at the time of
the application. A offers evidence that X was acting in bad faith and sent a letter
offering A to keep the $ but release X. Is the letter a good faith offer? No, its kind
of a threat. Bad faith termination is not allowed and is definitely outside 408.

I. Payment of Medical Expenses

FRE 409: OFFERS TO PAY MEDICAL & SIMILAR EXPENSES
Evidence of offering to pay medical, hospital, or similar expenses resulting from an
injury is not admissible to prove liability for the injury.

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Hypo: Bus accident where bus driver says to injured party, Its my fault. I blew the
stop sign and I will pay for you medical bills. FRE 409 excludes the medical bill
part but the admission can come in.

J. Liability Insurance
FRE 411: LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not admissible to
prove whether the person acted negligently or otherwise wrongfully.

This may be admitted for another purpose, such as proving

(1) bias,
(2) agency,
(3) ownership, or
(4) control

K. Guilty Pleas
FRE 410: PLEAS, PLEA DISCUSSIONS, & RELATED STATEMENTS
In a civil or criminal case, evidence of a withdrawn guilty plea, a no contest plea, or
statements made during plea discussions or proceedings are not admissible against
the defendant.

Prosecutor can say anything said can be used against the defendant to get
around this rule.

Hypo: Is proof of a murder conviction admissible in a wrongful death conviction?

Yes, it is relevant and has been proven beyond a reasonable doubt when wrongful
death suits only require preponderance of the evidence. The acquittal is nonadmissible because it is NOT proof beyond a reasonable doubt its not innocent, its
just not guilty.

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Hypo: Resisting arrest and assaulting police grand jury failed to indict. Police
officer is now charged with police brutality. Theres no probative value through a
grand jurys failure to indict (it just means no evidence).
Hypo: Plaintiff sues a bus company more plaintiffs surface to sue after verdict for
negligence. Plaintiffs dont have to prove negligence because of res judicata. The
reverse (no negligence found) is not true, it just means that the plaintiff couldnt
prove it. The other plaintiffs will get a shot.
Hypo: Robbery Defendant #1 is acquitted. Defendant #2 can still be charged. In
#1s trial the issue was identity. The jury acquits due to a mistaken identity.
Collateral estoppel can be used here.

L. Trade Usage
Negligence where defendant deviates from a standard of care and the jury must
determine if that was breached. An expert can come in and the custom or practice
can be established.
Hypo: There is an assault in the Pace parking lot. Afterward they implement
brighter lights, call boxes, and an extra patrol. This evidence can be kept out
(FRE 407), but plaintiff can argue that the standard of the trade is to have lights,
call boxes, etc. and by not having this, its negligent.
Hypo: Brewery, someone goes inside to pee. Theres sawdust on the bathroom floor
and the plaintiff falls. He attempts to prove the brewerys bathroom is not up to the
standard of care and tries to prove that another bar in NY has different/cleaner
bathrooms. This does NOT make a standard. You need more than just one other
place.

25

Hypo: Male technician administers a sonogram. Victim alleges that he sexually

assaulted her and claimed there should have been a female attendant there. Is this
a standard? Plaintiff attaches affidavit from a radiologist said that hospital
breached the standard of care and cites 2 sources. Court found that the radiologist
was testifying only to guidelines, not to regulations, so no standard is proven.

C H A M P I O N S
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)

II.

Character 404, 405

Habit 406
After 407
Medical 409
Plea 410
Insurance 411
Offers 408
Numerous Prior Similar Happenings not codified
Sex Crimes 412, 413, 414, 415

EXAMINATION OF WITNESSES

A. Direct Examination
Side with the burden of proof goes first.

Govts Case / Ps case

Ds case

Govts Case / Ps case

Direct

Direct

Direct

X-Exam

X-Exam

X-Exam

Re-Direct

Re-Direct

Re-Direct

(1) Leading and Other Improper Questions

26

Suggest an answer
Examples: Wouldnt you say its a nice day out? & Arent you wearing a

jacket?
They suggest the lawyer is testifying and using the witness as a puppet. Jury

dislikes this.
Leading Questions are errors but have never really overturned a verdict.
Objections make the adversary look incompetent.

FRE 611(c): EXCEPTIONS FOR LEADING QUESTIONS

Leading questions should not be used during direct examination except for as
necessary to develop the witness testimony. The court should allow leading
questions on cross examination, for a hostile witness, an adverse party, or a
witness identified with an adverse party.
(2) Refreshing Memory
FRE 612: WRITING USED TO REFRESH A WITNESS MEMORY
An adverse party can use a writing to refresh memory while testifying or before
testifying (if the court allows it). The other party can have the writing, inspect it,
cross examine the witness about it, and introduce it into evidence if it relates to
the witness testimony. Unrelated matters will be deleted by the court.
Hypo: A party could bring in fettucini alfredo to help refresh a witness memory or it
could be just looking at a document. The adverse party can then use this however
theyd like.
(3) Impeaching Ones Own Witness
FRE 607: WHO MAY IMPEACH A WITNESS
Any party, including the party that called the witness, may attack the witness
credibility.

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This is a departure from common law. Usually vouch for your witnesses.

B. Cross-Examination
FRE 611(b): SCOPE OF CROSS-EXAMINATION
Cross-examination should not go beyond the subject matter of the direct exam and
matters affecting the witness credibility.
Under 404(a)(3) evidence of a witness character can be admitted under FRE 607,
608, & 609.

C. Cross-Examination and Impeachment

There are 8 impeachment techniques: 4 common law and 4 provided in the FRE.
(1) Impeachment by Contradiction
State v. Oswalt: Defendant says he wasnt in Seattle at the time of crime. Witness is
owner of a diner in Portland who is testifying defendant was in his restaurant on
that day. Owner needs to establish why he can recall that particular date. Under
cross examination, owner says defendant was in every day for the past 2 months,
thats why he can say he was there that day. On rebuttal prosecution calls witness
who says he spoke to Oswalt about a month earlier in Seattle. This contradicts
owners testimony he wasnt in the diner EVERYDAY. Even though they dont
have direct proof contradicting owners testimony (of the day in question), they have
SOMETHING.
Hypo: Eye witness testifies to a man breaking into a car on Main St. on Sunday
morning and running way from the car. Prosecution calls witness to testify. Says
he left his house on Sunday morning and went to the candy store to buy a
newspaper and as he was leaving he saw him run away. Contradictions: Isnt it a
fact that you bought the NY Post, not the NY Times? And that you bought hot
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chocolate not coffee? And that you actually saw it while entering, not leaving?
Seem de minimis & these can be asked intrinsically. What if the eye witness was
actually coming from an all-night poker game this goes to his credibility/honesty.
Lack of sleep might impair his perception and identification, especially if he was
drinking.
Can you pose extrinsic evidence to impeach a witness? NO, if collateral.
Ultimately the judge decides this. If its central to the core issues, then its OK.
TEST OF COLLATERALNESS: Could the fact, as to which error is predicated,
have been shown in evidence for any purpose independently of the contradiction?
-

When is the contradiction NOT collateral?

Could the prosecution prove, independent of a contradiction that Oswalt
was in Seattle on June 12, 1961?
o This fact could NOT be proven without this contradiction.
o Is it relevant? Maybe Oswalt was casing out the place on that day?

We dont have that info so NO, it is not relevant.

Sometimes not passing the test of collateralness is harmless error, but
sometimes its prejudicial enough.

(2) Character of Witness

a. Prior Bad Acts
FRE 608(b): WITNESS CHARACTER (TRUTHFULNESS) SPECIFIC
INSTANCES
Except for a criminal conviction under FRE 609, extrinsic evidence is NOT
admissible to prove specific instances of witness conduct in order to attack
character for truthfulness. On cross, specific instances may be inquired into if they
are probative of the character for truthfulness/untruthfulness of the witness or
another witness that the witness has testified about.

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This is a theory that allows the examiner to bring in prior bad acts to show that the
witness is untruthful. Some bad acts are more probative of lying such as forgeries
and lying on statements. The connection between doing bad acts and telling the
truth is that you have more of a propensity to break the law youre probably doing
it right now. You place your own interest head of societys interests (the law).
US v. Owens: Owens accidentally kills his wife. Demonstrated that his application
to be a warrant officer meant a lot to him (it was a big increase in salary). Asked
specifics, so he needed to see paper under refresher 612 look at the questions he
answered incorrectly and discuss omissions. He omitted a narcotics offense. This is
dishonesty in a sworn statement and goes to his character about honesty and
truthfulness. Its not the bad acts of the narcotic offense or the assault and
battery, its the disclosure of them on this document. Defense lawyer could attempt
to save this by saying that the warrant officer told him he could verbally disclose the
crimes.
What kind of bad acts are probative of untruthfulness?
-

Assault? No.
Shoplifting? Not really, but you could argue it, maybe.
Weapons charge? No.
False statement/perjury? Yes.
Insurance/Mail fraud? Yes.

If a witness denies a prior bad act, you CANNOT prove it extrinsically. This limits
the amount of witnesses for judicial efficiency.
(In NY Sandoval hearing to determine what bad acts can be raised. Judge
weighs probative value and prejudice.)
Hypo: Defense in a civil case discovers X (witness for plaintiff) lied on an
employment application by claiming to have a Masters degree. X was expelled from
graduate school for plagiarism before getting the degree. Xs lie on the application
30

and his plagiarism has no relevance to the lawsuit other than its bearing on Xs
character for truthfulness.
(1) Permissible to ask X on cross whether in an application for employment he
falsely claimed to have a Masters degree? Admissible. Goes to truthfulness.
(2) If X denies he claimed to have a Masters on the employment application,
would it be permissible to refresh his memory? Yes. Can show the
application to the witness, but it cannot be introduced into evidence.
(3) If X denies committing plagiarism, should the cross-examiner be allowed to
introduce into evidence a report by a school disciplinary committee finding
that the witness committed plagiarism? (The witness admits the report is
authentic.) The report is extrinsic and should not be allowed.
(4) If X denies committing plagiarism and the cross-examiner produces a prior
written statement by X confessing to plagiarism. Is the statement admissible
if X admits making the statement but still denies committing plagiarism?
Witness admits making the statement intrinsically. Keep out all the stuff
because its extrinsic, although the theory behind the rule isnt disturbed by
including and accepting this evidence.
(5) Is it permissible to ask X on cross, Isnt it true you were expelled from
graduate school for plagiarism? Can ask. If X says no, its still a permissible
question.

a. Prior Convictions
FRE 609: IMPEACHMENT BY EVIDENCE OF A CRIMINAL CONVICTION
-

Convictions are divided into felonies and all other crimes.

Felonies are OK to impeach if LESS than 10 years old.
Juvenile adjudications are rarely used to impeach.
Its OK if an appeal is pending. The conviction can still be brought in and you
can discuss that its being appealed as well.

4 Balancing Tests for FRE 609

(1) FRE 609(a)(1)(A): Any witness, other than the criminal defendant: 403
Balancing Test (probative value is substantially outweighed by prejudice,
31

taking too much time, too confusing, etc.) Criminal convictions that show
propensity will NOT outweigh the prejudice. (FELONY ONLY.)
(2) FRE 609(a)(1)(B): Impeaching criminal defendant by a prior felony:
REVERSE 403 whether or not the probative value outweighs the prejudice.
Rule makers wanted to encourage criminal defendants to testify. (FELONY
ONLY.)
(3) FRE 609(a)(2): US v. Wong example. Judge must allow criminal conviction
to be used if the judge can readily identify that the crime itself required
dishonesty or false statement. These are SO probative so there is NO
discretion. (THIS CAN BE A FELONY OR A MISDEMEANOR.)
(4) FRE 609(b): Conviction is more than 10 years old: probative value
substantially outweighs the prejudice. Murder, drugs, etc. too prejudicial.
Criminal fraud goes to dishonesty and are crimes that have probative
value.
Criminal convictions can be asked intrinsically, and if denied, certified extrinsic
evidence may be introduced.
US v. Wong: Convicted of mail fraud. This goes to untruthfulness because its
dishonest and a false statement. No discretion here, must be admitted.
US v. Sanders: Defendant was charged with assault on an inmate. Motion to
exclude prior convictions judge excludes 2 but allows in a conviction of assault on
another inmate. Sanders claims self-defense. Prosecution asked about prior
conviction in detail (You were convicted because you stabbed a victim?) It was
used to show propensity. Court reverses because it is harmful error. You can only
use prior convictions to show untruthfulness.
Convictions for ANY crime involving dishonesty or false statement within 10 years
JUDGE MUST ADMIT. No balancing.

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Defense counsel will most likely make a motion in limine to limit criminal
convictions and bad acts.
Hypo: 4 bad acts & 2 convictions. Judge allows 2 bad acts and 1 conviction. Judge
is in the wrong. The bad acts have nothing to do with the crime at hand. Because of
this, the defendant doesnt testify. The judge abused discretion, HOWEVER, the
defendant MUST subject himself to testifying/impeachment in order to appeal. If
you refuse to testify, you give up your right to appeal. (But this isnt the case in all
states, specifically not NY.)
Hypo: Defendant testifies, lawyer brings out on direct that defendant committed bad
acts and conviction. Lawyer does this because its better to hear it from the
defendant rather than later from the prosecution. Looks like youre not trying to
hide anything. BUT if you use this technique there is NO chance for appeal. Cant
say evidence they brought out themselves was brought out in error.
Hypo: Defendant has been indicted for mail fraud. Its a charge (not a conviction).
He has made false claims to Medicare before and is on trial for another crime where
the indictment is still pending. Can you ask about the Medicare fraud? Under
608(b), it goes to truthfulness. Defendant has not been convicted, so it is yet to be
resolved. He may be answering questions that may incriminate him. He has a
privilege to remain silent.
Hypo: Betsy Borden murder case. Minister testifies she is peaceable and nonviolent.
-

Prosecution wants to introduce petty larceny (misdemeanor), truthfulness?

Yes, probably. Theres probably a lie in that. Extrinsic evidence ok if she

denies? Yes, but only to show crime NOT propensity.

Disturbing the peace (misdemeanor)? Cant be used to impeach Betsys
testimony but it can be used to impeach the ministers.

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Hypo: Buzzy principal prosecution witness in the Borden case, testifies that he saw
Borden leaving the house where the crime was committed. To impeach Buzzy,
defense offers possession of MJ, still pending. Pending cases are NOT allowed. You
could shot it if maybe youre trying to prove he may be getting a deal (bias).
Hypo: X is prosecuted for the offense of having sex with A, his 13 year old stepdaughter. X denies charge. Prosecution proposes to establishes (during cross)
convictions of rape, sale of heroin, and grand theft (all within 10 years).
-

Rape VERY prejudicial. It would have to be rape of a child (probative).

Heroin favorable balancing test to defendant used here. Most likely kept

out.
Grand theft dishonest act, might be false statements. Judge would not be
able to keep it out, he has no discretion here.
b. Psychiatric Condition

Psychiatric history is not always something that gets commented on. A subpoena to
the doctor for a witness records is necessary. The judge determines if you should
get the records. If theres something relevant, the judge will release it. If not, then
its sealed.
This deals with things that go to the witness perception, sight, hearing,
basically any defect of the senses that might go to truthfulness.
You can ask extrinsic evidence questions because it goes to the core of the witness
truthfulness. It is not collateral.
Hypo: Witness was drinking, denies it. Bring in extrinsic evidence to prove the
witness was drinking? Yes, thats OK.
US v. Lindstrom: Witness suffers from psychosis and is making the entire thing up.
Mental disorders have a high probative value. If witness in Lindstrom is allowed to
34

be asked about crazy episodes and denies it, extrinsic evidence is OK. This is a core
issue.
Hypo: Plaintiff v. Acme Corp. in a product liability action. Plaintiff claims Acme
knowingly marketed an unsafe product. The plaintiffs key witness is a disgruntled
former employee of Acme. To impeach
(1) The witness lied on the resume that the witness submitted to Acme as part of
his employment application goes to untruthfulness
(2) Witness is a drug addict probative of truthfulness? A bad act that relates
to truthfulness? No. Perception issues? Possibly. Some courts are split on
this. Would have to show that it has affected witness to recall information.
(3) Witness sabotaged computer before leaving Acme shows bias, motive to lie.
Clearly admissible.
(4) Witness has secret plans to assassinate the Pope, the President, and the
Dalai Lama psychiatric defect.
Hypo: X is prosecuted for battery upon A, his girlf. A testifies that she was trying to
dump him and he beat her. A has been seeing a psychiatrist for 3 years. X argues
that A made the whole thing up and he was trying to dump her because she was
seeing a psychiatrist and hes not OK with that. If Xs argument is that A
hallucinated, the fact that she is in treatment goes to prove his motive for trying to
break up the relationship.
c. Reputation for Truth & Veracity
FRE 608(a): REPUTATION OR OPINION EVIDENCE
A witness credibility may be attacked or supported by testimony about the witness
reputation for having character for truthfulness or untruthfulness, or by testimony
in the form of an opinion about that character. Evidence is only admissible on
truthful character only after it has been attacked.

35

On rebuttal after character witness testifies bad reputation for truthfulness,

plaintiff can call up an additional witness to testify to truthfulness. The additional
witness can also attack the earlier witness.
Hypo: Criminal defendant testifies. Can defendant now put on a character witness?
Defendant has presumably been attacked earlier in the case. If defendant doesnt
testify, can defendant call a character witness to testify to reputation? YES. 404(a)
(1) defendant can prove his character.
Hypo: Defendant has been cross examined. Defense has had defendant tested by a
polygraph test. What would lie detector test say? Could it give testimony on if he
thinks defendant is truthful? Probably not.
(3) Prior Inconsistent Statements
FRE 613: WITNESS PRIOR STATEMENT
When examining a witness about a witness prior statement, a party doesnt need to
show the statement or disclose it to the witness. The party must show it or disclose
its contents to the witness attorney though. Extrinsic evidence of a witness prior
inconsistent statement is admissible only if the witness is given an opportunity to
examine the witness about it, or if justice so requires.
FRE 801(d)(1)(A): DECLARANT-WITNESS PRIOR STATEMENT
The declarant testifies and is subject to cross about a prior statement and the
statement is inconsistent with the declarants testimony and was given under
penalty of perjury at trial, hearing, or other proceeding. If the statement you are
using to impeach the witness was made under oath, it is admissible, not just for
impeachment but for its truth/proof.
Coles v. Harsch: Plaintiff sought judgment from defendant for maliciously alienating
the affections of his wife. Thompson was asked about the wrestling encounter to
show that the conduct was proper. On rebuttal he was asked about an encounter at
36

Pudding River that was disgraceful. This was inconsistent but a proper foundation
was not laid. This ONLY goes to his credibility, not to the truth of that statement.
Hypo: X is indicted for child molestation. A (12 year old step-daughter) does not
recall the molestation or testifying before the grand jury. Prosecution seeks to read
into the record a transcript of As testimony, describing Xs acts. Could lay a
foundation and ask questions. She claimed a lack of memory, so the prosecution
should attempt to refresh her recollection. A lack of memory is never impeachable.
Hypo: X is charged with murdering A with a beer bottle in a barroom brawl. X
claims that he struck in self-defense when A came at him with a knife. There are no
witnesses to the killing. B testifies for X that before the final encounter he saw A
and X fighting in the bar and that A was winning the fight and X looked like he was
trying to leave. B stepped in between to break up the fight and then left. On cross,
B has no recollection of making any prior statement to C. Prosecution calls C to
testify that a week after the killing B told him that X stated the earlier fight with A
and that B heard X say during that fight he was going to get a gun and shoot A. Xs
objection would be overruled. Witnesses can testify to a prior inconsistent
statement even when there is a lack of memory.
Hypo: X is prosecuted for robbery of a gas station. Y, a codefendant, is tried first
and convicted. AT Xs trial, prosecutor calls Y who says that he and a friend
committed the robbery. Y says IDR (I dont remember) as to whether X was the
friend, what the friend looked like, and as to whether Y had given a statement to B,
a police officer, as to who was with him. Prosecutor calls B and represents that B
will testify that Y told him X was his accomplice. X objects saying that Ys
testimony is NOT inconsistent with Bs. Y is not making clear factual statements.
You cannot evade impeachment just by saying false IDRs everyone would do that
then. Good faith IDRs are OK.
Hypo: X is prosecuted for assault with a deadly weapon on A. X calls B, who
testifies that A was approaching X with a gun in his hand when stuck by X with a
37

pool cue. On cross, the prosecutor asks B, didnt you state after Xs encounter with
A that a had no weapon in his hand when he was struck by X with the pool cue? X
makes a lack of foundation objection. You can attack a witness on cross without
foundation.
People v. Blutarski Hypo: Blutarski became a senator and then turned to a life of
crime. Bernstein testifies on direct that he went to a candy store to buy a
newspaper and saw a man smash the rear window of a Toyota, remove a leather
pouch, and run away in the direction of Broadway. However, he actually saw it
while he was leaving. Can mention this. Can also ask him for a description at trial
and contrast it with the one given in the police report. Blutarski has a record of
prior crimes. Are any impeachable? Shoplifting, guilty, within 10 years? Yes, likely
involves a false statement. Criminal possession of a controlled substance within 10
years? Not for a false statement. Misdemeanors cannot be used unless they are
false statements. Have to show that the probative value outweighs prejudice.
Criminal possession of a weapon is still pending, so you cant ask about it. (It can
show bias though, if fact specific i.e. could be covering for a friend, etc.)
FRE 615: EXCLUDING WITNESSES
At the request of a party, the court will exclude a witness so he doesnt hear the
other witness testimony. Expert witnesses may be in the court room. The
defendant will never be sequestered.
FRE 614: COURTS CALLING OR EXAMINING A WITNESS
A judge may call a witness on its own or at a partys request. Each party is entitled
to cross-examine this witness. The judge cannot call a clear, factual witness.
Hypo: Narcotics team executes a search warrant. They break down the door and see
3 people, who are handcuffed and patted down. They find drugs on Andre Arnold.
His defense is that emergency services came in first and the narcotics team planted
the drugs on him. Emergency Services is on prosecutions witness list but the
prosecution doesnt call him. Defense speaks with him and instead of calling him,
38

rests. Judge calls him and asks about typical protocol. Emergency Services guy
says they go in first but dont do a complete search, so they wouldnt necessarily find
drugs. Defense has been sabotaged by this. Courts cannot call clear, factual
witnesses.
(4) Bias
THIS IS NOT CODIFIED.
US v. Abel: Indicted for robbing a bank and went to trial. Ehle agreed to testify
against Abel and says he did it. Mills says Ehle is lying and he was going to falsely
implicate Abel for favorable treatment. Prosecution says they will bring Ehle back
to establish they were all members of the Aryan Brotherhood. Abel objected on the
basis of that being too prejudicial. District court allowed Mills to be cross-examined
about the gang, but disallowed Aryan Bros. term during cross. Jury convicted Abel.
Appeal found evidence of Aryan Bros. was admitted to show Mills was part of a
lying gang and must therefore be lying now. Govt cant impeach based on
membership alone (no guilt by association).
Evidence of bias can be admitted even if its prejudicial as long as its probative on
the fact of bias.
Hypo: A sues X (police officer) and Y City (Xs employer) for damages for false
imprisonment from Xs arrest of A in a barroom brawl. B, a witness for A, testifies
that A was a mere bystander and not a party to the brawl. On cross, X asks B if he
had not slashed tires on marked police cars 2x and been convicted of malicious
mischief for so doing. A objects that this is improper cross and improper attempted
impeachment of B. This is proper because it shows the witnesses animosity toward
police. Bias can only come out during cross examination.
Hypo: A sues X (police officer) and Y City (Xs employer) for damages for false arrest
and imprisonment growing out of Xs arrest of A in a barroom brawl. B, a witness
39

for A, testifies that A was a mere bystander and not a party to the brawl. On cross,
X seeks to question B to elicit that he had had 3 felony arrests by Y City police
resulting in no conviction. The fact that you were arrested a lot does not show bias
to the police.
Impeachment

C R I B C A P P
(1) Convictions
(2) Reputation
(3) Inconsistent Statements
(4) Bias
(5) Contradiction
(6) Acts that are bad
(7) Perception
(8) Psychiatric
Method

Intrinsic

Extrinsic

(1) Contradi ction

(2) Bad Acts

yes
yes 608(b) if it goes
to truthfulness
yes 609
yes
yes
yes
yes
yes

yes if not collateral

no 608(b)

(3) Convictions
(4) Psychiatric Evidence
(5) Perception
(6) Inconsistent Statements
(7) Bias
(8) Reputation

yes
yes
yes
yes
yes
yes

D. Rehabilitation
FRE 801(d)(1)(B): DECLARANT-WITNESS PRIOR STATEMENT
40

The declarant testifies and is subject to cross about a prior statement and the
statement is consistent with the declarants testimony and offered to rebut an
express or implied charge that the declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying.
Tome v. US: A marital dispute with a custody battle. Little girl lies to try to live
with the mother. Defense theory is that the little girl was instructed to lie by the
mother after concocting a story that the father had abused her. Prior consistent
statements made before motive to lie can be admitted. If made after, they are not
admitted.
Hypo: Anita Hill case. The MOTIVE to identify that Thomas is gross and
shouldnt be appointed to the Supreme Court. (Democrats would want this.) Must
be able to claim the story is created AFTER the appointment, so that its after the
motive. People testified that Anita had told them BEFORE his appointment.
Hypo: Cab driver gets robbed and can give the police a good description. They
should try to get a sketch and see if anyone recognizes this person. However, bring
in evidence that it was dark that night the cabbie didnt get a good look. You can
introduce the sketch into evidence because it is a prior consistent statement.

III. OPINIONS & EXPERTS

A. Opinions, Expertise, and Experts
FRE 1001-1008: ORIGINAL WRITINGS RULE
There is no such thing as the best evidence. Witness cannot testify as to what a
writing means or contains. An OG writing, sound recording, etc. is required to
prove its content. A witness can say that he witnessed a marriage, sent a letter,
etc., to the event itself. Judges have a lot of discretion here they may allow things
like tombstone writings, license plate numbers, maybe if theres a photograph or
something. If you cant produce it, secondhand evidence can be accepted.
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Forms of Proof
(1) Witness, with knowledge of an event who testifies to the facts of that event
(relevance)
(2) Witness, testifying to verbal statements (relevance, competence)
(3) Tangible/Real Evidence (authentic, relevance)
(4) Records/Documents (authentic, relevance, competence)
(5) Opinions, by non-experts (lay witnesses) and experts
FRE 701: OPINION TESTIMONY BY LAY WITNESSES
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
(a) Rationally based on the witness perception
(b) Helpful to clearly understanding the witness testimony or to determining a
fact in issue, and
(c) Not based on scientific, technical, or other specialized knowledge within the
scope of 702.
If a witness says a person is behaving irrationally, thats an opinion.
Hypo: Witness sees a bank robbery. Someone shoots a gun and a police officer falls.
Has he been shot? Thats an opinion. Pointing the gun is not technically an opinion
statement. Court attempts to break an opinion into discrete parts to ascertain that
its rationally based. Did you see a red stain? What did that appear to you as? Did
you see that car driving in front of Pace? How fast? Estimate the speed of the car.
Person appears shocked. This is an opinion that is rationally based. Appearing to
be friends, appearing to be enemies opinion. What type of accent definitely an
opinion.
Commonwealth v. Holden: Wink Case. Testimony that defendant winked. Winking
is a deliberate action and signifies something on the part of the winker to the

42

winkee. If the wink had a communicative intent or its meaning is an opinion. This
would have to be broken down into discrete parts. This isnt really rationally based.
FRE 702: TESTIMONY BY EXPERT WITNESSES
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) The experts scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue
(b) The testimony is based on sufficient facts or data
(c) The testimony is the product of reliable principles and methods
(d) The expert has reliably applied the principles and methods to the facts of the
case
(In NY, under the Frye Test experts cannot testify to novel and new discoveries
because they have not been peer reviewed yet.)
FRE 703: BASES OF AN EXPERTS OPINION TESTIMONY
An expert may base an opinion on facts or data in the case that the expert has been
made aware of or observed. If experts would reasonably rely on those kinds of facts
or data in forming an opinion on the subject, they dont need to be admissible for the
opinion to be admitted. If the facts or data would otherwise be inadmissible, it can
only be disclosed to the jury only if their probative value in helping the jury
evaluate the opinion substantially outweighs their prejudicial effect.
Hypo: Plaintiff and defendant have differing narratives of an accident. Does that
expert have to rely on that proof? During cross, bring out different facts if that
would change the conclusion. Computerized replica of the accident jury can see
both versions. Maybe doctor isnt fully accredited or doesnt have extensive
experience with the subject matter.
Experts can base testimony on:
(1) Firsthand knowledge
43

(2) Secondhand data (reports and other things to reasonably rely)

(3) Hypothetical questions (not really necessary anymore because expert can
know the facts before trial)
FRE 704: OPINION ON AN ULTIMATE ISSUE
An opinion is not objectionable just because it embraces an ultimate issue. In a
criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense. That is for the trier of fact (jury).
FRE 705: DISCLOSING FACTS OR DATA UNDERLYING AN EXPERTS
OPINION
Unless the court orders otherwise, an expert may state an opinion (and give the
reasons) without first testifying to the underlying facts or data. The expert may be
required to disclose those facts or data on cross.
FRE 706: COURT-APPOINTED EXPERT WITNESS
The court may order the parties to show cause why expert witnesses should not be
appointed. The court may appoint any expert the parties agree on and any of its
choosing. The expert must advise the parties of any findings the expert makes, may
be deposed by either party, may be called to testify by the court or either party, may
be cross-examined by either party.

B. Scientific Evidence
Daubert v. Merrel Dow Pharmaceuticals: Claim that anti-nausea medications cause
birth defects, but 130,000 scientists found there was no effect based on their
conclusions published in reports. Scientific evidence must be accepted by the
community at large and must be exposed to peer review. This hasnt met the Frye
Test.

44

IV. THE HEARSAY RULE

A. Rationale and Meaning
Out of court statement made by a person other than the declarant in order to prove
the truth of the matter asserted.
(1) Identify the statement (verbal/written/assertion & out of court)
(2) Identify the issue
FRE 801: DEFINITIONS THAT APPLY TO HEARSAY
Statement is an oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion. To be hearsay, it cannot be made at the current
trial or hearing, and a party must offer it to prove the truth of the matter asserted.
FRE 802: THE RULE AGAINST HEARSAY
Hearsay is inadmissible unless a statute, FRE, or other Supreme Court rules say
otherwise.
Hearsay is inherently unreliable. It is excluded because of 1) perception accuracy, 2)
memory problems, 3) sincerity, and 4) language transmission (ambiguity) issues.
Hypo: Gersh is illegally parked (say classmates you didnt see it). There are no
photographs or eye witnesses available. Should the statements you heard be
allowed? Each persons view of what they saw is different. You recd their acct of
what they saw. They could have made a mistake.
Ways to Tell if a Witness is Telling the Truth
(1) Oath
(2) Cross Examination
(3) Demeanor
45

You cant do ANY of these to an out of court statement

HEARSAY:
(1) Statement verbal or written or thru conduct
(2) Made outside of court
(3) To prove truth of matter asserted
US v. Brown: Overstated itemized deductions. The only evidence was from an agent
and her conversations with clients.
STATEMENT = My charitable deductions were $500.
ISSUE = Were tax payers deductions $500? (Brown wrote $1000.)
-

If yes, Brown = fraud

If no, Brown =/= fraud

Hypo: Challenge to a deceased mothers will. She was of unsound mind when she
disinherited her son. Son is on the stand, testifies that Dr. Z examined mother a few
days before death. Dr. Z told him his mother was crazy.
STATEMENT = Your mother is crazy. (Made out of court & to prove matter
asserted) (Written report or making crazy motion with finger near ear is no
different!)
ISSUE = Is mother crazy? (Statement goes to prove that.)
Hypo: Dr. says to son, your mother says shes Cleopatra, has flown to earth on a
chariot of fire, and is a messenger of God, to save the earth If the issue is
whether the mother is Cleopatra, then its hearsay. If the issue is still is the
mother crazy this is NOT hearsay.
Next is this relevant? This statement proves circumstantially that shes insane.
People who make statements like this are crazy and out of touch with reality.
Hypo: In a car heading toward intersection. You say, Stop sign coming up! Driver
goes thru and hits a car, and is now being sued. This statement would be able to
46

prove theres a stop sign. But this statement isnt necessary since there are maps
and pictures. This statement could instead go to the drivers state of mind or
knowledge of stop sign.
Subramaniam v. Prosecutor: Was found wounded with ammunition. He wants to
say he was captured by terrorists and threated.
STATEMENT = If you dont fight with us, we are going to kill you
ISSUE TO BE PROVED = Subs state of mind (specifically duress, coercion)
ISSUE TO MAKE IT HS = whether the terrorists were going to kill Sub if he didnt
fight with them. (SINCE THIS IS NOT THE ISSUE IN THE CASE JUMP TO
RELEVANCE ANALYSIS.)
RELEVANCE maybe Sub is being insincere. If he is contriving a defense, then
just cross exam him and show that hes lying.
Commonwealth v. Knapp, redux: Said he was scared and had heard that policeman
had killed an old man. He was going to be arrested.
STATEMENT = The cop killed an old man.
ISSUE TO BE PROVED = Defendants state of mind (specifically reasonable fear)
ISSUE TO MAKE IT HS = Did the cop kill an old man?
(Not the same, so relevance analysis)
RELEVANCE cross exam Knapp, see if hes making it up.
Vinyard v. Vinyard Funeral Home: Slip & fall on parking lot. Complaints had been
made before.
STATEMENT = surface slippery when wet.
ISSUE TO BE PROVED = Did the officers have notice/knowledge of the slipperiness
(shows negligence), state of mind of biz
ISSUE TO MAKE IT HS = to prove if the surface was slippery when wet
(No match, so relevance analysis)
RELEVANCE complaints had been filed they were on notice.

47

Hypo: Defendant charged with murder (girlf) & doesnt dispute that he killed her.
Defendant wants to testify, Girlf said she is preggo and wants to have a permanent
relationship. He loses control and plunges a knife into her stomach.
STATEMENT = Im PG with your child.
ISSUE TO BE PROVED = defendants state of mind (specifically EED/heat of
passion)
ISSUE TO MAKE IT HS = if she actually was preggo with defendants kid
(No match, relevance analysis)
RELEVANCE goes to mitigate the murder charge. Shows an extreme emotional
disturbance.
Hypo: Susan Smith kids in the car, she pushed them into a lake. Prosecution
tries to put in letter from affair.
STATEMENT = You and I are too different. I cant be with you because of your
kids.
ISSUE TO BE PROVED = Smiths state of mind
ISSUE TO MAKE IT HS = trying to prove Smith & side piece are different people
(No match, prosecution doesnt care.)
RELEVANCE Goes to Smiths state of mind, more to her motive. She wants to
eliminate her kids so she can be with this jabroni.
Non-Hearsay Use of Out-of-Court Statements
(1) State of mind of the person who heard the statement (Examples: Sub, Knapp,
Vinyard, Smith, Johnson, supermarket, cancer.)
(2) State of mind of the declarant (Example: customs drug suit)
(3) Knowledge
Johnson v. Misercordia: Plaintiff tries to introduce statements from other doctors
referencing the skills of Dr. S.
STATEMENT = Dr. S is a butcher.
ISSUE TO BE PROVED = Dr. S is incompetent and Johnson is entitled to damages
ISSUE TO MAKE IT HS = whether Dr. S is a butcher
48

(No match, so relevance)

RELEVANCE Hospital should not have hired him. Punitive damages should be
available here.
Hypo: Straight forward criminal case used to prove state of mind of the hearer.
Big drug dealer, police seize large quantity of drugs. Officer testifies.
STATEMENT = Defendant is a drug dealer.
ISSUE TO BE PROVED = state of mind of the drug dealer (reasonable grounds to
believe that defendant is a drug dealer)
ISSUE TO MAKE IT HS = Is defendant a drug dealer?
Match, so its hearsay.
Hypo: Supermarket, hears a customer walking down aisle and yells.
STATEMENT = Lady, theres ketchup on the floor!
ISSUE TO BE RPOVED = state of mind of woman, did she have notice/knowledge?
ISSUE TO MAKE IT HS = was there actually ketchup?
(No match, so relevance)
RELEVANCE if lady knew, then store isnt as much at fault
Hypo: Woman goes into a hospital after car accident. Doctor gives her bad news.
STATEMENT = You should have your shoulder checked. It looks like cancer.
ISSUE TO BE PROVED = is there emotional distress?
ISSUE TO MAKE IT HS = did doctor notice cancer?
RELEVANCE statement should be used to prove emotional distress
Hypo: Man going through customs wearing a very heavy looking suit. Drugs are
found in the shoulder pads. He says he didnt know.
STATEMENT = I am getting married next month.
ISSUE TO BE PROVED = knowledge of drugs in suit
ISSUE TO MAKE IT HS = if nephew is getting married
RELEVANCE to show the state of mind of why he brought the suit

49

Hypo: Sees an accident on a highway. Told wife that he thought the first car driver
was having a heart attack. He rushes to render aid to the driver who is actually not
having a heart attack.
STATEMENT = It seems like that driver was having a heart attack.
ISSUE TO BE PROVED = the other driver is having a heart attack
RELEVANCE makes him seem not so negligent (contributory)
Hypo: Plaintiffs wife is killed by a bus in NYC. Sues for damages for the loss of
wife, specifically loss of consortium. Bus company does research and finds the will
of the wife.
STATEMENT = My husband has been mean to me, I leave him $1.
ISSUE TO BE PROVED = a loss of consortium
ISSUE TO MAKE IT HS = proving he was awful
RELEVANCE shows state of mind of the wife
Hypo: Survivorship assume police go to scene after and it appears that the
husband is dead but the wife is alive. Officer seeks to testify that the female stated
she is alive. What if she said SF Giants beat the Tigers. Admissible? Proves a
functioning state of mind. Dont need the content of the statement.
Hypo: FTC is suing Tropic Cooler OJ for false advertising as freshly squeezed juice.
FTC administers a poll and 90% of people think its made of fresh juice. This is not
a hearsay issue and isnt being used to prove the truth of the matter asserted.
Relevance does it have the capacity to deceive? Yes, state of mind, using an outof-court statement.
US v. Hernandez: Claims that he was set up. Informant and a DEA agent met the
defendant for a cocaine transaction. Want to admit that Hernandez is a drug
smuggler. It violates character evidence but the judge says that its relevant to
prove the agents state of mind. But that is not at issue here. Nobody cares. State
of mind MUST be relevant.

50

US v. Kinder: Case involving larceny and focuses on the testimony of a police officer.
Little boy pointed and told where the stolen property could be found (and it was
found there).
STATEMENT = The radiator is in that building. Goes to knowledge that he saw it.
ISSUE TO BE PROVED = did Kinder steal it
ISSUE TO MAKE IT HEARSAY = who put it there
Hypo: Molestation case, little girl describes apartment. This helps to locate the
defendant. At trial the little girl doesnt testify. The police and mom testify instead.
(She is too scared.) They give her description of the apartment. This is allowed.
Hypo: X is prosecuted for assault with a deadly weapon (billiard cue). Xs defense is
self-defense. In rebuttal, prosecution calls B who proposes to tesify that a week
before the fight A said that X had struck him several times with a bat a month
before.
STATEMENT = X struck me with a bat.
ISSUE TO BE PROVED = did X assault A with a deadly weapon?
ISSUE TO MAKE IT HS = did X strike A with a bat?
This proves the state of mind that A is afraid of X. If he is afraid he would not be the
first aggressor.
Hypo: X is prosecuted for the murder of A. A died from a bullet wound recd while in
Xs apartment. Xs defense is that he was showing a pistol to A at As request and it
accidentally went off. Prosectuion calls B who proposes to testify that a week before
As death, A told him that X had threatened to kill A.
STATEMENT = X is going to kill me.
ISSUE TO BE PROVED = state of mind, fear of defendant
ISSUE TO MAKE IT HS = whether X planned/threatened to kill A
RELEVANCE if shes scared of X, it would be unlikely she would request to see a
gun.

51

Hypo: X kills A. Undisputed but talks about marital problems. A tells someone
that X will never let her leave him.
STATEMENT = X will never let me leave him. I know hell kill me.
ISSUE TO BE PROVED = if X killed A
ISSUE TO MAKE THIS HS = state of mind
RELEVANCE state of mind isnt relevant here.
US v. Zenni: Illegal bookie activities. Law enforcement answered the phone several
times. The calls from the gamblers were non-assertive conduct. Law enforcement
wanted to use the proof of the calls to confirm it was a bookie place. However, the
callers were calling to place bets, not to confirm it was a bookie place. Deals with
implied assertions/non-assertive conduct. Examples: Leaving class class is over.
Closing your umbrella its no longer raining. Running away when police
approach you did something wrong. Taking LSAT interested in going to law
school. Gambling you are a gambler. Some conduct is non-assertive. IMPLIED
ASSERTIONS ARE ADMISSIBLE.
Implied assertions were hearsay at common law but arent under the FRE.
Declarants veracity is not at issue here.
Independent legal significance is when certain words are used to help define that it
was made in legal context. (Incitement, threats, defamations, etc.)
Not Hearsay:
(1) State of mind hearer
(2) State of mind declarant
(3) Knowledge
(4) Non-assertive conduct (implied assertions)
(5) Independent legal significance
(6) Animals
(7) Machines
(8) Silence failure to make a statement

52

K I S S

S M A C

(1) Knowledge
(2) Independent Legal Signficance the words used
(3) State of Mind Hearer
(4) State of Mind Declarant
(5) Silence
(6) Machines
(7) Animals
(8) Conduct, non-assertive

B. Exceptions to the Hearsay Rule

(1) Confrontation & Hearsay
Crawford v. Washington: Crawford is charged with attempted murder. He said that
the victim was trying to attack him. He brings in a statement by his wife Sylvia.
She previously gave a recorded statement not under oath to police. She says the
stabbing was not unprecedented and implies some affirmative action on the victims
part. Invoked the marital privilege and did not take the stand. Testimonial
statements are inadmissible when there is NO opportunity to cross. Lack of
confrontation (violating 6th Amendment) is not OK.
(2) Dying Declarations
FRE 804(b)(2): STATEMENT UNDER THE BELIEF OF IMMINENT DEATH
(1) Declarant believes death is imminent
(2) Statement must relate to cause or circumstances
(3) Homicide or civil case

53

This exception comes from a religious basis at common law and that if a person was
dying, they would not want to die in sin.
State v. Jensen: Woman believed her husband was going to kill her. Wrote a letter
stating this and gave it to her neighbor. Husband killed her. This wasnt her last
statement, but the court justified it by saying she could retrieve the letter at any
time. By not retrieving it, she intended it to be her last statement, should she
suddenly be murdered.
UNAVAILABILITY is required for all 804 exceptions.
804(a) Criteria for Being Unavailable
(1)
(2)
(3)
(4)
(5)

Privilege claim
Refusal to testify
Lack of memory
Physically unable death or illness
Inability to procure via reasonable means must use DUE DILIGENCE

FRE 806: ATTACKING & SUPPORTING DECLARANTS CREDIBILITY

Declarants credibility can be attacked or supported by any evidence that would be
admissible if the defendant had testified as a witness. A dead declarant can be
impeached the same way you can impeach a regular witness. RIP
Hypo: Declarant is close to death. Tells police who shot him and survives. Its an
attempted murder case. No go MUST be homicide or civil.
Hypo: Car accident. Police officer goes to driver. Driver says, I should have seen
the stop sign. This is a civil case. If he driver doesnt die, then hes NOT
unavailable. If he gets on the stand and doesnt remember anything, that counts as
unavailability.

54

Hypo: Describes person who shot him, gives a narrative up to the shooting. Does
the dying declaration go to the cause or circumstance of the death? Here, yes.
Proof that a declarant believes death is imminent is by preponderance of the
evidence.
Hypo: X is prosecuted for murder in shooting A to death in a barroom brawl. In
defense, X calls B. B will testify that she talked with A in the hospital the day
before his death and that A had difficulty breathing and said, I dont think I can
make it. It was not Xs fault. C was going after X with a knife before X drew his
gun. C ducked when X fired and thats how I beat Shaq. I mean, got shot. The
prosecutor makes a hearsay objection to Bs testimony and offers to prove by Y, a
nurse, that 5 minutes before B talked with A, A told her that he was feeling fine and
expected to be able to leave the hospital within a few days.
-

Does A believe death is imminent? Talking to B = yes. Talking to Y = no.

Relates to cause/circumstance? B = yes, Y = no.
Unavailable? B = yes, Y = yes.
If the judge cannot resolve which is more credible, he should keep both out.
One must be established true by a preponderance of the evidence. If he cant
no dice.

Hypo: the judge admits Bs testimony. Prosecutor calls Y, the nurse, to testify
before the jury to As statement made to her. Prosecution is trying to make the
judge look bad. Judges ruling is on the evidence about the law. Jury decides the
weight of the facts and the facts.
(3) Spontaneous & Contemporaneous Exclamations
FRE 803(2): EXCITED UTTERANCE
(1) Startling event
(2) Timing still under the stress/shock of the event
(3) Relate to/be caused by the startling event
55

Truck Insurance Exchange v. Michling: Came home complaining of head pain from
an accident at work. Brought a suit for workmans comp goal is to show he died
on the job. He said his head hurt after work to his wife because he hit his head on a
bulldozer. This is a hearsay statement, but is an excited utterance. There is no
independent evidence that the startling event actually happened. Bootstrapping
proof of the startling event is the exciting utterance you cant do that. Need
individual proof.
Theory Excited utterances are trustworthy because theres so much
emotion/stress/trauma theres no time to contrive a statement.
Hypo: Victim of a shooting who is bleeding walks up to the roof of a building. Cops
ask who shot him and the man answers that Frank did. The truth of the matter
asserted is who shot him/did Frank shoot him. Is this a dying declaration? Might
not think he is dying if he walked up to the roof of a building. Maybe excited
utterance? 1) Startling event? Yes. 2) Made under stress of startling event? Yes. 3)
Goes to cause of the startling event? Yes.
Davis v. Washington: 911 call for a domestic disturbance. Davis goes to trial.
Michelle does not appear. Prosecutor will provide an authenticated 911 call. Jury
recd transcript. Is the 911 call hearsay? YES. Can the jury convict on the sound
recording? Yes. Domestic violence victims often do not appear because they are
scared. This is similar to Hammon v. Indiana, where the police separated the
husband and wife and ask what happened. Wife signs an affidavit that her husband
has beaten her. Affidavits are out of court statements that go to the truth of the
matter asserted. They must conform to the 6th Amendment.
Is this statement testimonial? If theres an ongoing emergency and the primary
purpose is to respond, then its not recorded for a criminal trial. The witness isnt
thinking about a trial at that moment. In Hammon, the emergency had ended. In
Davis, it was on going.
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Theory for admitting evidence that might be testimonial Forfeiture by

Wrongdoing (if he somehow pressured Amy not to testify, he loses his 6 th
Amendment right to confront).
Hypo: Victim is shot, victim says, Rick shot me, then dies. Relied on excited
utterance, not dying declaration. Shooter shot through the door. The victim crawled
to a gas station and the shooters whereabouts are unknown. This turns on whether
its an ongoing emergency or not. This is a fuzzy line and is very contextual. Police
may be more concerned with securing the situation (there is a man on the loose with
a gun) so it may still be an on going situation.
Hypo: Car cash, Houston Oxygen truck tried to claim car was negligent. Witness
trying to repair her car on the side of the road. She sees the car involved in the
accident speeding. They want to have her friend testify that this woman said that
the car was going wild.
STATEMENT = That car is speeding.
ISSUE TO BE PROVED = was the car negligent/speeding
ISSUE TO MAKE IT HS = was the car speeding
Match, so its HS.
So, exception inherent reliability in seeing a speeding car and commenting on it
instantly. EXCITED UTTERANCE.
FRE 803(1): PRESENT SENSE IPRESSION
(1) Describe/explain event
(2) Made while perceiving event or immediately after (matter of minutes)
Lira v. Albert Einstein Medical Ctr: Dr. sees some shoddy work on a patient. Whos
the butcher who did this? goes to the truth of the matter asserted. This was not an
excited utterance (hes a doctor, he sees this stuff every day). Impression theres
no need for it to be instinctive.

57

Describing an action as it happens does this survive Crawford v. Washington?

Yes. This is not an interrogation.
(In NY if this exception is invoked, corroboration must be introduced.)
Hypo: P sues D for damages arising out of being struck by a car while walking. Ds
defense is that he was in the curb lane in his red car and that a blue car passed him
in the next lane, striking P, knocking her into the air and onto his red car. P calls
paramedics and represents that the paramedic will testify that she arrived on the
scene 10 minutes afer the accident and saw P lying on the ground and she was in
great pain but not in shock, and that P said, Oh my God! Help me! The red car hit
me! Is it HS? Yes. Exception? Excited utterance. Got hit by a car, 10 mins,
relates to the event. Stress and shock is used pretty broadly.
Hypo: D calls police and represents that an officer will testify that she arrived at
the scene 5 minutes after the accident and that a number of people were gathered
around P and that someone said, that lady was hit by a blue car which didnt stop
and she was thrown up in the air and landed on that red car, but doesnt know who
said it. This would be a present sense impression. We dont know who said it and 5
minutes is not immediately after. We know nothing at all about the declarant.
Maybe the declarant didnt even see it firsthand.
Hypo: Prosecution of the accused for the kidnapping and assault on the victim.
Victim suffered brain damage and was hospitalized for 7 weeks. S, victims sister,
said that one week after victim came home from the hospital, S showed her a
newspaper article containing a picture of the accused. S testified that the victim
freaked out and pointed at the picture and said , He killed me, he killed me. The
accused objects that the statement is hearsay, and that it is not a spontaneous
declaration because the startling event was the assault which happened 8 weeks
ago. Seeing the photo could be a NEW startling event.

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Hypo: Prosecution for the theft of a truck. A state trooper testifies that after
receiving a radio report of an abandoned stolen truck, he appealed for information
over his radio. Someone reported that he saw two men walking away from the point
where the truck had been abandoned. A second person informed him that the two
men were seen walking 5 to 6 miles away from the truck a few minutes after the
first radio statement. Should the 1st statement be admitted? The first caller could
not have been reporting at the exact time he saw the men.
(4) Admissions
FRE 801(d)(2): AN OPPOSING PARTYS STATEMENT
Types of Admissions
(1) Individual/Personal
(2) Representative
(3) Adoptive/Implied
(4) Agency
(5) Authorized
(6) Co-conspirators
Under the FRE, admissions are automatically admissible. Not regarded as hearsay.
(NY regards them as hearsay.)
The theory behind hearsay is that the statement has not been exposed to
extemporaneous cross examination. With admissions, you cant use the argument
that the statement has not been exposed to cross examination. You are stuck with
what you say. You arent going to cross examine yourself.
Individual/Personal Admission:
Reed v. McCord: Boss wasnt present but testifies as to how the victim died. The
supervisor was likely the one who told the boss. The boss doesnt say that someone
else told him how it happened and just carries on as though he knows. This is an
admission by McCord. This is clearly an adoptive admission, though its framed as
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an individual/personal admission. He has no personal knowledge, but that is no

basis to exclude the testimony.
Representative Admission:
2nd Circuit case defendant is charged with drug crimes. The theory is that he was
in the location where the drug transaction happened but it was a conspiracy. He
claims he had nothing to do with it. He had to admit he was there because the
witness placed him there. Defense switches theory during re-trail that the
defendant wasnt actually there. Prosecutor wants to offer proof that earlier they
argued he was there. This is a representative admission. Lawyers represent other
people.
Adoptive/Implied Admissions:
US v. Hoosier: Im going to rob a bank next week. This was an out of court
statement by the defendant. Its being used to prove the truth of the matter
asserted. Prosecutor will say, You were in a hotel room. Who else was there?
Defendant, witness, and girlf. The girlf says, You should see how much money we
got. We have so much! Defendant doesnt say anything. Probable human behavior
would be that he would interrupt with a denial.
Hypo: Walking along, seeing someone put a tire on, say the tire is bad and the
person is going to have an accident. The person is silent, he is adopting that silence.
Hypo: 2 brothers, Bert & Ernie, charged with burglary. Bert gives a speech
confessing. They write out his confession. He says it doesnt want to sign it until
Ernie has seen it. Ernie OKs it. Thats an adoptive admission.
Hypo: Nocturnal admission, saying something when youre sleeping. No. Not an
admission. Youre not conscious.
Hypo: Drug conspiracy defendant is arrested in hotel room. In the room there is
a biz card of a name of someone else and a phone # of a co-conspirator. Could that
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be an adoptive admission? This means that person is staying at the other persons
hotel.
Silence in the face of an admission could be an adoptive admission. BUT NOT IN A
CRIMINAL CASE. (Miranda v. Arizona you have the right to remain silent!) this
could possibly translate into a civil case if it dealt with something during a criminal
arrest.
Authorized & Agency Admission:
Mahlandt v. Wild Canid: Wolf bites a little kid. Note from Poos, conversation re:
Poos statement, and Board of Directors Minutes all containing that Sophie bit a
child. The maker of the statements was not present. They were not based on
personal knowledge, however, thats not important. If Poos made the statement as
an agent, then hes stuck with it.
Hypo: P is involved in a car accident. Claims D went thru a red light. P is yellng
and screaming while in pain. P could use this as an excited utterance.
Hypo: Crash between a bus and a pedestrian. Right after the accident, the bus
driver stumbles out and says, My brakes were defective. I dont think Im going to
make it. This is admissible as a dying declaration and an excited utterance. It is
also a present sense impression, describing the brakes. It is also an agency
admission because he was acting in the scope of his employment.
The hearsay statement of an agent is admissible against his employer, only if the
making of the statement is an activity within the scope of his authority.
Hypo: Truck driving along a city street at 5:30 pm, strikes a pedestrian. Driver
says, Im sorry I missed you, this is my last delivery and I missed the stop sign. P
wants to offer this statement. We dont know if his day was over or if he is going
home. His shift might be over and he may no longer be an agent. Cant bootstrap
here.
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Co-Conspirator Admission:
Bourjaily v. US: Conspiracy case where informant was trying to arrange a cocaine
deal. Assume it was someone else in the vehicle. Im here because B told me to
come. Want to introduce these statements against B as a co-conspirator.
Bootstrapping (by a judge) is sometimes allowed to find out the facts.
Hypo: A person in a bar with a friend who is really drunk. He tells his friend that
he robbed a bank. This is admissible as an admission.
Crawford v. Washington has nothing to say about admissions. Cant say you didnt
get a change to confront yourself re something you said.
(5) Former Testimony
FRE 804(b)(1): FORMER TESTIMONY
(1) unavailable witness
(2) former testimony of the witness
(3) against a party of predecessor in interest who had 1) an opportunity and 2)
similar motive
Travelers Fire Insurance v. Wright: Govt calls 2 witnesses who testified under
immunity. They said that JB asked them to burn down the property. JC and JB
sue for the proceeds from the insurance company. If one party is guilty of arson,
then the other cannot recover. 2 witnesses who testified at criminal trial refuse to
testify again. Insurance company wants to introduce their criminal trial
testimonies into civil trial. There is an inability to obtain the testimony any other
way and they had a previous opportunity to cross examine them on the same issue,
so its OK.
Hypo: Prosecution presents evidence and a key witness testifies to the grand jury.
This witness dies. Is the grand jury testimony available at trial? There is no
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opportunity to cross-examine and the defendant and lawyer were not present. NOT
OK.
Hypo: Assuming theres no grand jury proceeding, prosecutor brings the charge and
theres a preliminary hearing. After the hearing the witness becomes unavailable.
Can the preliminary hearing testimony be introduced? There must have been an
opportunity to cross examine. There is NOT a similar motive during a preliminary
hearing than there is at a real trial. Defense is not going their hardest. Defense
attorney doesnt want to show prosecution his theories before the actual trial,
should it come to that.
Hypo: X is prosecuted for robbery of A, a bartender. At Xs preliminary hearing A
testified as to the commission of the crime. A stated the address of B Bar where he
was working and his residence address but indicated that he planned to move soon.
At Xs trial, prosecutor offers in evidence the preliminary hearing transcript of As
testimony after calling C, a DA investigator who testifies that he cannot locate A.
On cross by X, C testifies that he didnt make an inquiry to the bartenders union
nor the residence address. Was there a good faith attempt to locate A?
Hypo: X is prosecuted for robbery of A. Prosecutor offers in evidence the transcript
of As testimony given at the prelim hearing after calling B, a DA investigator, who
testifies that a subpoena had been sent to As place of employment but was not
served because A was in NY and that A told B she planned to remain there for the
next 6 months. In a criminal case, subpoenas are allowed anywhere. Civil cases,
interstate compact.
Hypo: A sues X for $1500 property damage to his automobile arising out of a rearend collision. X takes As deposition. A moves to NY after his depo is taken and is
living there at the time of trial. As counsel offers As depo testimony in evidence
after testifying that A called and said it was too expensive to come back to
California and testify. A is unavailable under the rules and is essentially just

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refusing to testify. Subpoena in a civil trial doesnt go very far, so his deposition
could be admitted.
Hypo: X, a police officer, pursued a felon into a bar. X became involved in a dispute
with A, the bar owner. X claims that A struck him with a chair. X arrested A on the
charge of battery upon a police officer. A testifies that he didnt touch X and that X
struck him with his billy club. B, a bar patron, testifies for A and corroborates As
story. A was acquitted and sues X and Y City for damages for battery, false arrest,
and imprisonment. A the trial of As action against X and Y City, A establishes that
Bs whereabouts are unknown and that he used reasonable diligence. A tries to
admit Bs testimony from the criminal trial. The city was not at the first trial and
did not have an opportunity to cross examine B. X had the opportunity to do that at
the prior trial.
Hypo: D is charged with possession of narcotics. He is arrested at his home for an
unrelated charge. He currently lives with X. While D is in jail on the unrelated
charge, P, a police officer, secures a warrant for Ds residence and discovers a
hollowed out bed frame with hidden narcotics. D testifies that he had no knowledge
of this and that he had seen X with a pill vial similar to the one in the bed and that
he had seen X inject speed. D offers in evidence his defense under the former
testimony exception evidence given by X in another criminal case. In this prior case,
X testified for the prosecution as a witness to the murder of her husband, which
took place one week after Ds arrest. On cross at the former trial, X said that on the
evening of the killing she had taken speed and was an addict. At Ds trial, X is
unavailable. D contends that Xs former testimony is relevant on the question of Ds
lack of knowledge, possession, and control of the items discovered in the bedframe.
Look to motive for eliciting testimony that X does drugs. Murder trial was to make
it seem like she doesnt know whats going on. Ds trial, he wants to put it in to
show that the drugs arent his.
(6) Declarations Against Interest

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FRE 804(b)(3): STATEMENT AGAINST INTEREST

(1) Unavailable declarant
(2) Statement is so contrary to the declarants proprietary or pecuniary interest
or subjects him/her to criminal or civil liability
(3) Corroborated by other evidence (if offered in a criminal trial)
McKelvey v. General Casualty: Seeking proceeds from insurance company. Signed
confessions from employees proving how much they sold. The employees admitted
they stole money. These were declarations against interest.
Hypo: Bus driver falls out of bus bleeding. Says, Im not going to make it. I missed
the stop sign. Is that admissible? Dying declaration if hes unavailable. Probably
admissible as an excited utterance as well. Admissible as a present sense
impression. Its also an admission. Its the statement of an employee. Its also a
declaration against interest. Hes admitting to breaking the law.
Hypo: Witness testifies to grand jury saying that he committed this crime. Now X is
on trial and the witness dies. Can you use the grand jury testimony? Cant put it in
former testimony because no cross. The statement is against the declarants
interest, except maybe not. He probably has an immunity deal. This attacks on the
second prong of Declaration Against Interest. Admitting to criminal liability is not
admissible at a criminal trial because its clearly testimonial and theres no
opportunity for the defendant to cross examine. After Crawford v. Washington
declarations against interests are HARDLY admissible in criminal trials because
the witness isnt available and theres no opportunity to cross. In a civil case
though, its a different story.
US v. Barrett: Tilleys statement exonerates Barrett but implicates him. The court
originally excluded the part about Barrett not being involved as it wasnt a
declaration against interest for Tilley. Appellate court ruled the whole statement
was against his interest.

65

In a criminal case, defendant can offer a declaration against interest. If the

defendant is offering some testimony, theres no Crawford issue, as he definitely has
a chance to cross examine it. Defendant could be attempting to enter in a false
statement, which is why corroboration is needed.
Hypo: Altercation between two men. Defendant shoots and kills victim. Defendant
is prosecuted and uses self-defense. Victim attempted to kill, defendant out drew
him. Did anyone see the victim with a gun? It gets lost. Defendants lawyers learn
that witness X has been arrested himself for robbery and witness X admitted to the
robbery and admitted to using a gun. He says he found the gun in a bar, the same
bar where defendant shot the victim. X is refusing to testify because he has his own
trial. He is unavailable. The story supports defendants story that the victim had a
gun (and dropped it when he fell). It is a declaration against interest for X. Judge
must find a corroborating circumstance.
Hypo: X is prosecuted for possession of MJ that was found in a jacket. A refuses to
testify. Introduce statement that A makes to B, I left the jacket in Xs car. This is
not a declaration against interest. Hes not necessarily saying, I left a jacket with
drugs in it in Xs car. This is just hearsay.
Hypo: X is charged with possession of heroin. If A really did say to B (wife) it
belonged to someone else then it invokes law of privileges. Statements made under
the privilege cannot be resaid.
Hypo: A is a guest in a car driven by B, which collides with a car driven by X. B is
in Europe. X calls C to testify that a week after the accident b told him the accident
with X was all Bs fault because he blew the red light. This is a declaration against
interest. Wouldnt say it unless its true.
Hypo: paternity action claims X is the father of As kid. C is now in Europe. X
calls B who testifies that C told B that C was having an affair with A during the
time that As child was conceived. Its slightly speculative.
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Hypo: D is charged with the murder of V. D was seen beating V prior to the
shooting. No eyewitness to say D did the shooting. D requests trial judge to
conduce evidence admissibility hearing. D calls X to testify whether X did the
shooting. X refuses to answer. D calls A who testifies that he heard X say he had
shot V in the chest and that D was trying to break up the fight. A testifies he heard
X say that X would take the beef because he was going to juvie and couldnt get
hurt. X apparently told someone there that D asked him to lie. This alludes to a
possible deal before the testimony, however, it is not at all trustworthy.
(7) State of Mind
FRE 803(3): THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL
CONDITION
A statement of the declarants state of mind AT THAT MOMENT regarding motive,
intent, or plan or of an emotional feeling, or physical condition (like pain or mental
feelings) is admissible.
Adkins v. Brett: Plaintiff brought an action for the alienation of his wifes affections.
Plaintiff is trying to show that some guy alienated his wifes affections. Plaintiff
offers as proof a few different statements his wife made to him. Cannot testify about
their past relationship. Backward statements have hearsay problems (confusion
and inaccuracy).
Examples: I hate you. You repulse me. I love Frank (defendant). These are
admissible under state of mind.
State of mind does not include remembered facts.
Mutual Life Insurance v. Hillmon: Brown accidentally shoots Hillmon. Insurance
policy claimed that the body found was not Hillmons. Trial judge disallows
evidence at the trial to prove that the body is Walters. Walters is an individual who
67

claimed he was going out west with Hillmon. Letters from Walters to his fiance are
proffered to show that its his body. Letters prove they were both there. Letter is an
out of court statement I am a friend of John Hillmons. I trust Hillmon.
Acceptable under the state of mind exception. I met Hillmon last week. NOT OK.
Memory.
Hillmon Doctrine regarding whether state of mind can include future intentions.
Courts havent really addressed that. Statement of something you are going to do
counts as state of mind.
Shepard v. US: Convicted of murdering wife by poison. Dr. Shepard has poisoned
me. Wife to nurse. His defense is suicide. Statement by the wife I love life, is
state of mind evidence. Cant argue dying declaration. State of mind excepton does
not let you describe what someone else did. Dr. Shepard hates me. Dr. Shepard
has a girlfriend. Not OK. They show what Dr. S is doing, thinking, etc.

Its not

admissible because it goes to show his actions and attempts to explain his state of
mind.
US v. Pheaster: Adell left a restaurant and nobody ever saw him again. There was a
ransom request but it didnt pan out. Larry left intending to buy MJ from a drug
dealer named Angelo. The only way the statement becomes relevant is if Angelo
was in the parking lot. Larrys statements dont prove Angelos state of mind.
Hypo: Was the declarant with Angelo that night?
(a) I am going to the parking lot at Sambos North tonight. (Other evidence
shows that Angelo went there that night.) Admissible under 803(3).
(b) Angelo is going to the parking lot at Sambos North tonight. (Other
evidence shows the declarant went there that night.) No exception to prove
that someone else is going somewhere.
(c) I am going to Angelos apartment tonight. Admissible under 803(3).

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(d) I will not go out with anyone other than Angelo tonight. (Other evidence
showing that he went out with someone.) Admissible, shows he was planning
to go there.
(e) I am going to wait at home for Angelo until he picks me up and we will go
out. (Other evidence shows that the declarant left his apartment that night.)
Future intentions, goes to relevance.
(f) I am going out to meet Angelo in the parking lot at Sambos tonight. Future
intentions, Pheaster.
Hypo: Buzzy is being prosecuted for murder. State offers testimony about a
statement that the victim made before the victims death.
1) The defense is an accident. Buzzy claims he and victim were cleaning guns
when it accidentally went off.
a. I hate Buzzy. State of mind. Relevance? Might show motive for
Buzzy.
b. Buzzy has been stalking me. He threatened to kill me. This is a past
event, not state of mind. Could go to a reasonable fear, and THATS
state of mind.
2) The defense is self-defense. Buzzy claims the victim attacked first.
a. Im afraid of Buzzy. State of mind. Relevance? Might show victim
would not attack first.
b. Buzz has been stalking me. He threatened to kill me. This is a past
event, not state of mind. Could go to a reasonable fear victim in fear
would not attack first.
Hypo: Buzzy is charged with murder. Buzzy is after me because I ripped him off.
If I dont come back this afternoon, call the police. This is from the past and would
not be allowed to show state of mind. Writing the phone # on the note is not
hearsay. The fact that the victim knows Buzzys phone # shows they have an
association.

(8) Physical Condition

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FRE 803(4): STATEMENT MADE FOR MEDICAL DIAGNOSIS OR

TREATMENT
A statement that is made for (and is pertinent to) medical diagnosis or treatment
and describes medical history, past or present symptoms or sensations, their
inception, or their general cause.
Hypo: My back hurts. Im in great pain ever since I fell in class tripping over a
students book. These are statements of physical condition, so they are allowed.
Statement of how you felt last week, not allowed.
Statements of prior physical feeling exception when you tell a doctor under
803(4). You can discuss present symptoms, past symptoms, and cause of symptoms.
Cause? Hit by a car, but not hit by a blue Toyota. Sexual abuse within the
exception, even if the person is relevant. Not sure if it applies to mental health
professionals.
Hypo: A personal injury action is brought by a plaintiff who slipped and fell in a
supermarket.
a) P complained my neck hurts to friends for weeks after 803(3)
b) P told his doctor, My neck has been hurting for 6 months. 803(4)
c) P told the same thing to a non-treating doctor hired by his lawyer to give
expert testimony at his trial 804(3), applies to non-treating as well
d) P told the paramedic who came to the scene, I slipped and fell on a banana
that had been dropped by a stocker. not the whole thing. I slipped and fell
on a banana, admissible under 803(4). Conclusion it was dropped by a
stocker is not in state of mind exception.
Hypo: In an action for termination of parental rights, the state offers evidence that
a pediatrician asked a 5 year old, What happened to your arm? and the 5 year old
said, Buzzy [stepfather] burned me. This might be admissible depending on the

70

situation. (NY does not admit medical testimony from non-treating doctors, but
FRE allows it.) This is present physical condition, as told to a doctor.
(9) Prior Identification
FRE 801(d)(1)(C): DECLARANT-WITNESS PRIOR STATEMENT
The declarant testifies and is subject to cross about a prior statement and the
statement identifies a person as someone the declarant perceived earlier.
This deals with statements of a witness on the witness stand. Prior statements of
that witness in 3 instances are admissible automatically.
Automatically Admissible Prior Identification Statements
(1) I inconsistent statements IF those prior inconsistent statements are made
under oath
(2) C consistent statements IF made to rebut a claim of recent fabrication
(3) I identification of a witness (when witness is present)
Theory behind the identification rule is that the witness has identified the suspect
before and probably when memory was clearer.
US v. Owens: Foster is attacked and his memory is seriously impaired. Unable to
identify his attacker, but can do it sometime later. He describes the event and picks
out a photograph with an FBI agent who visits him in the hospital. On cross, Foster
cant remember any other visitors when he was at the hospital. He is a useless
witness because he cant remember anything at all, so theres a confrontation issue.
But if youre face to face with the witness, your confrontation right has been
satisfied.
Hypo: Child is a young victim of a serious sexual charge testifying against her
attacker. A screen can be put up in this instance so that the lawyer can ask and the
child wont get scared. Is confrontation at its essence the ability to look the witness
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in the eye? If yes, then theres an issue with this. Necessity can allow an exception
though.
Hypo: X is prosecuted for robbery of A. A testifies that he was held up at gunpoint
and that the next day he identified the person who robbed him, but hes not sure if
he could identify again at this time. B, a police officer, will testify that A came to
the station the day after the crime, and that while X was passing, A yelled there
goes the man who robbed me! and pointed at X. X makes a hearsay objection. Can
the police officer testify to prior identification? Yes this is exactly what the rule
allows.
Hypo: except that A has no recollection of making a pretrial ID of X or any other
person. The prosecution offers Bs testimony of As pretrial ID of X at the police
station. A made a proper identification. A is on the witness stand and is subject to
cross, so theres confrontation. The witness MUST be there for 801 to apply.
(10)Past Recollection Recorded
FRE 803(5): RECORDED RECOLLECTION
(1) Made or adopted a writing/record
(2) Knowledge of its accuracy
(3) Dont remember
Dont get this confused with Past Recollection Refreshed (FRE 612). Thats about
asking questions and giving the witness clues that might help him/her remember.
This rule is about a record here, and is more than just a verbal account.
Baker v. State: Police officer on the stand has forgotten details. Prosecutor wants to
refresh memory by giving him the other officers report. Cant really do that it has
to be something you made. You could show someone their academic transcript to
refresh their memory on what grades they got, even though thats technically not

72

something they made. They have adopted it though. The jury doesnt get this in the
jury room, because its really just a substitute for oral testimony.
Hypo: X is prosecuted for robbery. Prosecution calls A, who testifies that she saw
the getaway car and noticed the license plate. 10 minutes later a police officer came
to the scene and she told him exactly what the plate was. Prosecution calls B, a
police officer, who testifies that at the scene A told him the plate number and that
he wrote it correctly. Prosecutor asks B to read the plate number. Would a witness
remember a plate number? No, so its okay to refresh this way. A witness would
remember that after she saw the plate number she accurately gave it to the police.
Police officer should ask certain questions when getting information from the
witness. Is this right? Are you sure? Witness should sign off on police record so
that she has adopted it.
(11)Forfeiture by Wrongdoing
FRE 804(b)(6): STATEMENT OFFERED AGAINST A PARTY THAT
WRONGFULLY CAUSED THE DECLARANTS UNAVAILABILITY
A statement offered against a party that wrongfully caused the declarants
unavailability as a witness, and did so intending that result is NOT excluded by the
rule against hearsay.
State v. Jensen, redux: Lady leaves letter saying that if shes murdered, her husband
definitely did it. The court attempted bringing it in on dying declaration and used a
lot of weird reasoning to let it in that way. Court mentions forfeiture by
wrongdoing.
Giles v. California: Defendant killed a victim, then that defendant has made the
victim unavailable. If the defendant had a specific intent to make the witness
unavailable by his own actions, are the witness statements admissible? Must prove
that the defendant INTENDED to keep the witness from testifying.

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(12)Business Records & Official Records

FRE 803(6): RECORDS OF REGULARLY CONDUCTED ACTIVITY
A record of an act, event, condition, opinion, or diagnosis:
(1) Made at or near the time
(2) Kept in regular course of activity
(3) Made in the regular practice of the activity
(4) Shown by a custodian (qualified witness)
(5) Trustworthiness
FRE 803(7): ABSENCE OF A RECORD OF A REGULAR CONDUCTED
ACTIVITY
Evidence that a matter is not included in a record described in 803(6) if:
a) The evidence is admitted to prove that the matter did not occur/exist
b) A record was regularly kept for a matter of that kind
c) Neither the possible source of the information nor any other circumstance
indicate a lack of trustworthiness
Johnson v. Lutz: Police officer made a report business record & public record. He
did not see the accident 1st hand and is writing down the statements of other parties
that are present. This police report is not really trustworthy. Bystanders did not
have a duty to the business (here the police) to tell the truth. If they did, then the
information they conveyed would be reliable.
Hypo: Letter of recommendation about summer internship. Would that be
included? No, the lawyer has no duty to the law school so the information in the
letter isnt deemed as reliable. Hospital records are different because the people
who make the records (nurses, doctors, etc.) have a duty to the hospital.
Hypo: Suit by A against B arising out of a car accident. Police report has a
statement which the plaintiff seeks to introduce.

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a) I was standing at my beat and saw the red Chevy (Ds car) go thru the red
light & strike the green Ford (Ps car). Officer has personal knowledge and
he has a duty to the police.
b) I arrived at 1:30 (20 minutes after accident) and noticed a skid mark, which
I measured 93 feet leading directly to the rear wheels of the Chevy.
Investigating an accident is in the standard course of biz and he has a duty to
the police, so this information is trustworthy.
c) I arrived within 5 seconds of the impact and heard a bystander scream, Did
you see that crazy red car go thru that red light? This contains a statement
of a bystander. Is it clear the bystander has personal knowledge? The time
frame is so small, so its pretty clear that the bystander saw the accident.
The bystander doesnt have a duty to the police department. Analyze
bystanders statement. Excited utterance?
d) I arrived a few minutes after the accident and asked the driver in the red
Chevy what happened. He stated he had fallen asleep at the wheel and
didnt know. Must examine if its a reliable statement. This is an admission.
e) I arrived a few minutes after the accident and Officer Jones approached me
and said that he had seen the accident and that the red Chevy had gone thru
the red light and hit the green Ford. Examine reliability. The 1st officer has
a duty and the 2nd officer has a duty. Double hearsay, under the biz record
exception.
f) I arrived a few minutes after the accident and Office Jones told me that she
had gotten there just before I did and asked Chevy driver what had happened
and he said, I fell asleep. Triple hearsay. Admission to Officer J
hearsay exception. Officer J to Hypo Officer duty to biz. Hypo Officer to
record duty to biz. All statements independently admissible.
g) I arrived 25 minutes after the accident and I asked a bystander what had
happened. He said that he had seen it all and the red Chevy was going too
fast and couldnt stop. Content here is not trustworthy.
FRE 805: HEARSAY WITHIN HEARSAY

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Hearsay within hearsay is not excluded by the rule against hearsay if each part of
the combined statements conforms with an exception to the rule.
US v. Duncan: Group of 7 defendants, defrauding insurance. Hospital records kept
by the insurance company were going to be admitted. Defendants argued that the
medical records were unauthorized. However, the defendants authorized the
records when they went to the hospital and submitted their claims to the insurance
company to get money.
Hypo: Should a newspaper reporters notes be admissible as a biz record? The
newspaper itself? These are kept records. They are made in the regular conduct of
business. But the trustworthiness prong is problematic here. Newspapers ARE
NOT within the business records exception.
FRE 803(8): PUBLIC RECORDS
(1) Public offices/govt offices the offices activities
(2) Matters observed excluding observations by law enforcement
(3) Civil case or by defendant in a criminal case factual findings from a legally
authorized investigation.
*Judge still has the discretion as the gatekeeper to keep anything out for
untrustworthiness.
Many biz records are ALSO public records. The activities can be sporadic and they
dont have to be regularly recorded. A custodian is not needed to enter these in, it
can just be certified.
Hypo: D is accused of committing murder in a dwelling on Green Street. He will
present an alibi that he was 600 miles away. Prosecution has the record of traffic
citations issued on the night of the murder on Ds SUV near the crime scene.
Citation has the license plate number and description of Ds car along with the time
and date of the infraction. It was issued by a police officer who doesnt remember
the car or its plate number. This is an observation and is a public record. Biz
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record police engaging in normal conduct. Could also be a present sense

impression. He looked down and wrote the license plate. Doesnt remember it, but
knows its correct, recorded recollection. FOUR exceptions work here.
US v. Grady: The foreign police records were made as office activities.
Hypo: P sues X Dept. Store for damages for injuries recd in a slip & fall. P claims
she slipped because the floor was highly waxed and polished. X offers a report
prepared for X by B, the manager. B is no longer in Xs employ and cannot testify.
Xs evidence establishes that Bs report was prepared the day after the accident. Bs
report states that B arrived at the scene a few minutes after P fell and while she
was still on the floor. B examined the floor and said it was not slippery. There are
issues about this report. It was not prepared in the normal course of business but
was prepared for litigation. Theres a trustworthiness issue.
Hypo: X is prosecuted for robbery. Xs defense is an alibi. X testifies he was in a
distant city, having just checked into a hotel. Clerk at the motel IDs a registration
card with Xs address and name at the time of robbery. The registration card does
not have a signature or anything. Clerk testifies that clerks often fill out the cards
from info supplied by the guests. This cannot be used to prove that X was there. Its
not trustworthy. You can use it to show someone registered with that name.
Hypo: A sues X for fire damage to As house. A had employed X to remodel As
kitchen. Just before the work was completed, a fire started in the kitchen and
caused the damage. A claims the fire resulted from Xs negligence. Xs defense is
that the fire was due to arson. X offers a report by a captain in the city fire
department. Captain spoke to neighbors. Neighbors statements must be
independently verified to see if they are trustworthy. They have no duty. These are
factual findings from a legally authorized investigation though, so it can come in
under public records. Discretionary function here. Fire captain will only put
convincing things in the report.

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Hypo: P sues D for damages for injuries suffered in a car accident. P does not call a
doctor to testify but offers the doctors report. This is the only record kept by him in
the ordinary course of biz. The report says that the dr. examined P and diagnosed a
fracture of the femur. Prognosis that P will suffer permanent residuals of a
limitation of motion. Diagnosis is aprt of the biz record. Prognosis is not
trustworthy. Its trying to predict the future and its speculative.
Hypo: A sues X to recover the contract price of goods sold. A and X entered into a
written K for A to sell 1000 tons of lead fume. K price depended on the exact weight
and metallic content. To prove these things, A testifies that she employed B to assay
a sample. She recd a report printed on Bs letterhead with what should be Bs
signature. She is not familiar. This letter is easily objectionable. Have to call the
witness himself.
Hypo: A sues X for damages for personal injuries and property damages from a car
accident. A testifies that he went to Dr. B and C Hospital for treatment and had his
car repaired at D Garage. A offered in evidence bills & invoices. Each bill is
stamped with Payment Recd. These records need a custodian to show reliability of
records.
Hypo: D is charged with robbery of V, a liquor store owner. V says that after the
robbery he obtained Ds license plate number. V testifies the plate was 468 ABC.
Ds car has this plate. The police report states that a neighbor of V reported the
plate as 416 ABC. D offers the report into evidence. D states the report is being
offered to establish that a different number had been reported. Caller had no duty
to report anything. Public records exception is a little broader. This isnt really an
office activity. Its also not the result of govt fact finding.
Hypo: Sam D is charged with perjury because he allegedly gave false testimony in
the trial of a civil action. Sam D IDed himself as John D and said he was an
engineer. Prosecutor offers a writing stating that C, the signer, is the custodian and

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C made a diligent search for employment records for John D/Sam D. This is an
absence of information.
(13)Residual Exception
CATCH ALL EXCEPTION: if you cant find that information any other place, and
the interest of justice so requires, its admissible.
FRE 807: RESIDUAL EXCEPTION
Under the following circumstances, a hearsay statement is not excluded by the rule
against hearsay even if the statement is not specifically covered by a hearsay
exception in 803 or 804:
(1) The statement has equivalent circumstantial guarantees of trustworthiness
(2) It is offered as evidence of a material fact
(3) It is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts
(4) Admitting it will best serve the purposes of these rules and the interests of
justice.
Turbyfill v. International Harvester: Attempted to start a car but a can of gas
exploded all over someone. Recd really bad burns. Afterward a man locked himself
in a room and made a report without anyone there. Present sense impression
when did he make his report? The time period has to be very recent. There was a
time lag so it doesnt fit there. Its also not an admission.
Hypo: Lightining storm damaged the clock tower. Engineers see charred embers in
the basement. They might relate it to the storm. Insurance company argues wear
and tear and says lightning had nothing to do with it. Send an associate into the
archives to find a local newspaper article that says a fire damaged the clock tower.
They used a newspaper article, which we know isnt admissible, BUT it is here
because theres no other way to get that info.

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Exceptions to Hearsay

B R I E F C A S E
1.
2.
3.
4.
5.
6.
7.
8.
9.

D A D

Business Records
Recorded Recollection
Interest, Declarations Against
Excited Utterance
Former Testimony
Contemporaneous Statements (Present Sense Impressions)
Admissions
State of Mind
Everything (Residual Exception)

10. Dying Declaration

11. Absence-maker (Forfeiture by Wrongdoing)
12. Doctor/Diagnosis

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