EVIDENCE OUTLINE—PROFESSOR ROTH—MGG

Table of Contents
Purpose 7
Preliminary Questions: Role of the Trial Judge 7
Rulings on Evidence 7
United States v. Walton: 9
Bandera v. City of Quincy (1st Cir. 2003) 9
relevance 10
Knapp v. State 10
U.S. v. Dominguez (1990) 11
Bandera v. City of Quincy (1st Cir. 2003) 11
State v. Larson (Mont. 1992) 12
Balancing: Probative value & prejudice 12
th
U.S. v. McRae (5 Cir. 1979) 12
Old Chief v. U.S. (1976) 13
U.S. v. Noriega (11th Cir. 1997) 14
C. conditional relevance 15
HEARSAY 16
the hearsay rule and its rationale 16
Sir Walter Raleigh (1928) 17
Leake v. Hagert (N.D. 1970) 18
Lyons Partnership v. Morris Costumes (4th Cir. 2001) 19
U.S. v. Parry (5th Cir. 1981) 19
Subramaniam v. Public Prosecutor (Privy Council 1956) 20
U.S. v. Saavedra (9th Cir. 1982) 20
Hanson v. Johnson (Minn. 1924) 20
Creaghe v. Iowa (10th Cir. 1963) 20
U.S. v. Montana (7th Cir. 1999) 21
U.S. v. Zenni (E.D. Ky. 1980) 22
State v. Dullard (Iowa 2003) 23
Confrontation Clause 26
Crawford v. Washington (U.S. 2004) 26
Davis v. Washington (U.S. 2006) 28
Hammon v. Indiana (U.S. 2006) 28
Michigan v. Bryant (U.S. 2011) 28
Ohio v. Clark (U.S. 2015) 29
Hearsay Exceptions 31
F.R.E. 801 Exceptions 31
1. Prior Statements by Witnesses 31
Albert v. McKay (Cal. 1917) 32
U.S. Owens (U.S. 1988) 33
2. Admissions by Opposing Parties 34
Salvitti v. Throppe (Pa. 1942) 35
U.S. v. McGee (7th Cir. 1999) 35
U.S. v. Phelps (E.D. Ky. 1983) 35
Rule: Hearsay within an admission is admissible against the party who made the admission if it
suggests the person had adopted the hearsay 36

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Reed v. McCord (N.Y. 1899) 36

Foster v. Commissioner of IRS 36
Beech Aircraft v. Rainey (U.S. 1988) 37
U.S. v. Fortes (5th Cir. 1980) 38
Southern Stone v. Singer (5th Cir. 1982) 39
Hanson v. Waller (11th Cir. 1989) 39
Sea-Land Service v. Lozen (9th Cir. 2002) 41
Bourjaily v. U.S. (U.S. 1987) 42
Bruton v. U.S. (U.S. 1968) 44
Richardson v. Marsh 45
Gray v. Maryland (U.S. 1998) 45
F.R.E. 803 Exceptions 47
Spontaneous and Contemporaneous Statements: 47
Present Sense Impression & Excited Utterances 47
Bemis v. Edwards (9th Cir. 1995) 48
U.S. v. Obayagbona (EDNY 1985) 49
U.S. v. Elem (8th Cir. 1988) 49
State of Mind 51
nd
U.S. v. Harris (2 Cir. 1984) 52
Mutual Life Ins. v. Hillmon (1892) 53
Shepard v. U.S. (1933) (Cardozo) 53
U.S. v. Houlihan (D. Mass. 1994) 53
Injury Reports 55
Rock v. Huffco Gas & Oil Co. (5th Cir. 1991) 55
Refreshing Recollection & 57
Past Recollection Recorded 57
U.S. v. Riccardi (3d Cir. 1949) 57
Fisher v. Swartz 58
Business Records 59
State v. Acquisto (A.2d 1983) 60
Keogh v. Commissioner of Internal Revenue (9th Cir. 1983) 60
U.S. v. Gibson (9th Cir. 1982) 61
Palmer v. Hoffman (U.S. 1943) 61
Lewis v. Baker (2d Cir. 1975) 61
Abascal v. Fleckenstein (2d 2016) 62
Mutual Life Ins. v. Hillmon (1892) 62
Wilson v. Zapata (5th Cir. 1991) 62
U.S. v. Gentry (7th Cir. 1991) 64
Public Records 64
Beech Aircraft v. Rainey (U.S. 1988) 66
Melendez-Diaz v. Ma. (U.S. 2009) (Scalia) 66
Bullcoming v. New Mexico (U.S. 2011) (Ginsburg) 67
F.R.E. 804 Exceptions 67
Unavailable 67
U.S. v. Bollin (4th Cir. 2001) 68
Kirk v. Raymark Industries (3d Cir. 1995) 68
Former Testimony 69
th
Clay v. Johns-Manville Sales Corp (6 Circuit 1984) 69
U.S. v. Salerno (U.S. 1992) 70
Dying Declarations 71
Shepard v. U.S. (1933) 71

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Michigan v. Bryant 72
State v. Lewis (Tenn. 2007) 72
Statements Against Interest 73
th
U.S. v. Duran Samaniego (11 Cir. 2003) 73
U.S. v. Jackson (2d 2003) 74
Forfeiture By Wrongdoing 75
Giles v. CA (U.S. 2008) 76
F.R.E. 807: Residual Exception 76
U.S. v. Laster (1933) 77
Boyce, p. 244 78
Hearsay and Due Process 78
Chambers v. Mississippi (U.S. 1971) 78
Fortini v. Murphy (1st Cir. 2001) 79
Hearsay Exam Strategy Checklist 79
iv. Character evidence 81
A. The Basic Rule and its Exceptions 81
People v. Zackowitz (N.Y. 1930) 82
Cleghorn v. NY (N.Y. 1874) 82
Berryhill v. Berryhill (Ala. 1982) 83
Larson v. Klapprodt (S.D. 1975) 83
B. Methods Of Proving Character 84
Michelson v. U.S. (U.S. 1948) 84
Government of the Virgin Islands v. Roldan (3rd Cir. 1979) 85
U.S. v. Krapp (8th Cir. 1987) 85
Fortini v. Murphy (1st Cir. 2001) 86
U.S. v. Setien (11th Cir. 1991) 86
U.S. v. Ford (7th Cir. 2013) 86
Other Permissible Uses of Specific Conduct 87
U.S. v. Beechum (5th Cir. 1978) 88
U.S. v. Boyd (4th Cir. 1995) 88
U.S. v. DeJohn (7th Cir. 1981) 89
Lewis v. U.S. (10th Cir. 1985) 89
U.S. v. Crocker (5th Cir. 1986) 89
U.S. v. Dossey (8th Cir. 1977) 89
U.S. v. Wright (7th Cir. 1990) 90
U.S. v. Davis (3rd Cir. 2013) 90
Huddleston v. U.S. (U.S. 1988) 90
Character and Habit 91
Loughan v. Firestone (11th Cir. 1985) 91
Burchett v. Commonwealth (Ky. 2003) 92
Sexual Assault and Child Molestation 93
Graham v. State (Tex. Crim. App. 1933) 93
Olden v Kentucky (U.S. 1988) 94
U.S. v. LeCompte (8th Cir. 1997) 95
U.S. v. Cunningham (7th Cir. 1996) (Posner) 96
Other Forbidden inferences 98
A. Subsequent Remedial Measures 98
Clausen v. Storage Tank Development Corp (1st Cir. 1994) 98
In Re Asbestos Litigation (2d Cir. 1993) 99
Diehl v. Blaw-Knox (6th Cir. 2004) 99

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Settlement Efforts 100

United States v. Davis (D.C. Cir. 2010) 101
Ramada Development v. Rauch (5th Cir. 1981 102
Carney v. American University (D.C. Cir. 1998) 102
PRL USA HOLDINGS v. Polo Association (2d Cir. 2008) 103
U.S. v. Mezzanatto (U.S. 1995) 104
Medical Payments & Liability Insurance 104
th
Charter v. Chileborad (8 Cir. 1977) 105
Higgings v. Hicks Co. (8th Cir. 1985) 105
Trial Mechanics 108
Order of Proof 108
Stone v. Peacock (11th Cir. 1992) 109
Elgabri v. Lekas (1st Cir. 1992) 109
U.S. v. Wilford 110
U.S. v. Carter 110
Mode of Questioning & Leading Questions 111
U.S. v. Nabors (10th Cir. 1985) 111
Ellis v. City of Chicago (7th Cir. 1981) 112
Sequestering Witnesses 113
U.S. v. Machor (1st Cr. 1989) 113
Questioning by a Judge 113
U.S. v. Tilghman (D.C. Cir. 1998) 114
Questioning by Jurors 114
U.S. v. Hernandez (3d Cir. 1999) 114
Impeachment and Rehabilitation 115
Introduction 115
Character for Untruthfulness 116
U.S. v. Lollar (5th Cr. 1979) 118
U.S. v. Rosa (3d Cir. 1989) 118
U.S. v. White (5th Cir. 1992) 119
U.S. v. Aponte (2d Cir. 1994) 119
U.S. v. Hernandez (3d Cir. 1999) 122
U.S. v. Amaehci (7th Cir. 1993) 122
U.S. v. Sanders (4th Cir. 1992) 122
U.S. v. Oaxaca (9th Cir. 1978) 123
U.S. v. Hernandez (3d Cir. 1999) 123
State of New York v. Smith 123
Prior Inconsistent Statements 123
U.S. v. Lebel (2d Cir. 1979) 124
U.S. v. Dennis (8th Cir. 1980) 124
U.S. v. Truman (2d Cir. 2012) 125
Bias and Incapacity 125
U.S. v. Abel (1984) 125
U.S. v. Sasso 127
Henderson v. Detella (7th Cir. 1996) 127
Specific Contradiction 127
Simmons v. Pinkerton 128
U.S. v. Copelin (D.C. Cir. 1993) 128
Rehabilition 129

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Beard v. Mitchell (7th Cir. 1979) 131

U.S. v. Danehy (11th Cir. 1982) 131
U.S. v. Drury (11th Cir. 2005) 132
U.S. v. Murray (3rd Cir. 1997) 132
Tome v. U.S. (1995) 133
U.S. v. Lindemann (7th Cir. 1996) 134
Competence 139
Generally 139
Rosen v. U.S. (1918) 139
U.S. v. Lightly (4th Cir. 1982) 139
Personal Knowledge 139
th
U.S. v. Hickey (6 Cir. 1990) 140
Oath or Affirmation 140
U.S. v. Ward (9th Cir. 1993) 140
U.S. v. Allen J (10th Cir. 1997) 141
Competence and the Constitution 142
Rock v. Arkansas (1987) 142
Judges, Jurors, and Lawyers 143
Tanner v. U.S. 143
Warger v. Shauers (2014) 143
U.S. v. Ewing (7th Cir. 1992) 144
Opinions, Experts & Scientific Evidence 146
Lay Opinions 146
U.S. v. Meling (9th Cir. 1995) 146
Gov of Virgin Islands v. Knight (3rd Cir. 1993) 147
State v. Lewis 147
Robinson v. Bump (5th Cir. 1990) 147
U.S. v. Freeman (6th Cir. 2013) 147
U.S. v. Ayala-Pizarro (1st Cir. 2005) 148
Expert Testimony 148
Hatch v. State Farm (Wyo. 1997) 149
Williams v. Illinois (2012) (Alito) 149
Expert Testimony: Reliability & The Daubert Revolution 150
Leblanc v. PNS Stores (Ed La 1996) 150
Daubert v. Merrell Dow (U.S. 1993) 151
General Electric Co. v. Joiner (U.S. 1997) 151
Kumho Tire Company v. Carmichael (U.S. 1999) 151
Privileges 153
Attorney-Client Privilege 153
Swidler & Berlin v. U.S. (U.S. 1998) 154
United States v. Kendrick (4th Cir. 1964) 154
Tornay v. U.S. (9th Cir. 1988) 154
United States v. Gann (9th Cr. 1984) 154
United States v. Evans (7th Cir. 1997) 155
U.S. v. Lawless (7th Cir. 1983) 155
Smithkline Beechan Corp. v. Apotex Corp. (N.D. Ill. 2000) 155
United States v. Kovel (2d Cir. 1961) 155
U.S. v. McPartlin (7th Cir. 1979) 156
Pasteris v. Robillard (D. Mass. 1988) 156

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Upjohn Co. v. U.S. (U.S. 1981) 157

Hughes v. Meade 157
U.S. v. Davis (5th Cir. 1981) 157
U.S. v. Rowe (9th Cir. 1996) 157
Waiver 159
U.S. v. Bernard 160
Tasby v. U.S. 160
Hollins v. Powell 160
In Re Von Bulow (2d Cir. 1987) 160
Crime-Fraud Exception 161
U.S. v. Zolin 161
Spousal Privilege 162
Trammel v. U.S. (U.S. 1980) 162
Other Privileges 163
Jaffee v. Redmond (U.S. 1996) 163
Physical Evidence 165
Authentication 165
Bruther v. General Electric (SD Ind. 1993) 166
U.S. v. Catso (5th Cir. 1989) 166
U.S. v. Grant (2d Cir. 1992) 166
U.S. v. Long (8th Cir. 1988) 166
U.S. v. Zhyltsou (2d cir 2014) 167
Best Evidence Rule 168
Meyers v. U.S. (D.C. Cir. 1949) 170
U.S. v. Gonzales-Benitez (9th Cir. 1976) 170
U.S. v. Stockton (8th Cir. 1992) 170
U.S. v. Standing Soldier (8th Cir. 1976) 171
Seiler v. Lucasfilm, Ltd (9th cir. 1987) 171
Demonstrative Evidence 174
Baugh v. Cuprum (7th Cir. 2013) 175
U.S. v. Weeks (5th Cir. 1990) 175
U.S. v. Humphrey (6th Cir. 2002) 175
Roland v. Langlois 176
U.S. v. Wood 176
Bannister v. Town of Noble 176
Abernathy v. Superior Hardwoods, Inc. 176
State v. Denton 176
Burdens, Presumptions, & Judicial Notice 178
Burdens & Presumptions: Civil Cases 180
In Re Yoder (6th Cir. 1985) 180
Burdens & Presumptions: Criminal Cases 181
Leland vs. Oregon (1952) 181
Mullaney v. Wilbur (1975) 181
Patterson v. NY (1977) 182
Sandstrom v. Montana (1979) 182
County Court of Ulster v. Allen (1979) 182
Judicial Notice 183
U.S. v. Gould (8th Cir. 1976) 184
U.S. v. Lewis (9th Cir. 1987) 185
Carley v. Wheeled Coach (3d Cir. 1993) 185

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U.S. v. Bowers (5th Cir. 1981) 185

U.S. v. Bello (1st Cir. 1999) 185

PURPOSE, RELEVANCE, BALANCING

PURPOSE
F.R.E. § 102 Purpose.
These rules should be construed so as to administer every proceeding fairly,
eliminate unjustifiable expense and delay, and promote the development of
evidence law, to the end of ascertaining the truth and securing a just
determination.

Why Have Rules of Evidence?

 Why not let it all come in?
o A hearsay witness could give unreliable information
o Jury might overvalue past evidence
o Jury might give something too much weight even if it doesn’t have a lot of
probative value
 Why not let the individual judge decide? Hopefully there will be more
predictability of rulings of what will be allowed in—and we will have more
consistent results with a system of rules
o If left to judges’ discretion, we will have inconsistent results
 Trial courts afforded great deal of discretion in appellate review
 Viva Voce proof – testimony from live, sworn witnesses, who are subject to
cross-examination and whose demeanor the jury can observe

Fundamental Concerns
 Relevance is the North Star of evidence law
o A lot will flow from analysis of whether something is relevant or not
 Fairness – systematic fairness; consistent fairness across all cases in the federal
legal system
 Privilege – honoring social importance of certain relationships
 Efficiency – keeping the costs to litigations, jury members and the court to a
minimum

PRELIMINARY QUESTIONS: ROLE OF THE TRIAL JUDGE

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F.R.E. § 104(a) Preliminary Questions.

The court must decide any preliminary question about whether:
 A witness is qualified
 A privilege exits
 Or evidence is admissible
 In doing so the court is not bound by the evidence rules, except those on
privilege
[preponderance of the evidence standard]

 104(a)  Applied when we are deciding whether relevancy is fairly apparent

o This is where courts applies hearsay rules, for example
o Court applies preponderance standard

RULINGS ON EVIDENCE
Rulings on Evidence
 A party on the record must object o the evidence and state the reason.
 If sustained  judge agrees with objections and party cannot answer
 If overruled  judge says witness can answer
 Must object if you want to appeal the issue
 Object on grounds of
o Hearsay
o Relevance
o Leading
o Asked & answered

How important is it to win the ruling in the trial court?

 Very important. Standard of review is very deferential
 F.R.E. 103(a) – requires parties to preserve their objections
 If objecting to introduction of evidence: State your objection clearly and
precisely; must be clear what you are objecting to and why — hearsay,
irrelevant, lack of foundation, etc.
 Strategic Considerations
o Do you want to look like you have a problem
o Projecting confidence
o More you object, more it might look like you are worried
o But if you don’t object, you’ve waived the objection to this evidence and
possibly “opened the door” to more testimony or information on the subject
 F.R.E. 103(e) requires parties to timely object and state the specific ground.
Failing this, review is the high bar of plain error

Analysis
 (1) Over objections – Abuse of discretion
o Allows the appeals court to review the record and make their own
evidentiary ruling
o Highly deferential to trial court
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 (2) No objection, then 103(2)(e) Plain Error – higher standard and more
discretion to court
o Reviews only whether trial court misapplied legal principles
o Court finds plain error when the error was “particularly egregious” or a
“miscarriage of justice”
 (3) Harmless error – if either of the above cases causes harmless error, it
insulates ruling below
o If an error nevertheless did not have an effect on the jury’s decisions,
ruling below will stand
o Reversible error – are those which affect the substantial rights of the
parties.

F.R.E. § 103 Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit
or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) If the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent from
the context.
(b) Not needing to renew an Objection or Offer of Proof. Once the
court rules definitely on the record –– either before or at trial –– a party
need not renew an objection or offer of proof to preserve a claim of error
for appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of
Proof. The court may make any statement about the character or form of
the evidence, the objection made, and the ruling. The court may direct
that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the
extent practicable, the court must conduct a jury trial so that
Why give so much deference to trial judge?
United States v. Walton:
 (1) Trial judge’s first-hand exposure to witnesses and the evidence
 (2) Trial judge’s familiarity with the case
 (3) Trial judge’s ability to gauge the impact of the evidence in the context of the
proceeding.

Rule: An objection, if basis is not obvious, is not preserved unless the ground is
stated (F.R.E. 103(a)(1)).
Bandera v. City of Quincy (1st Cir. 2003)
 Main Point: objection wasn’t clear so when witness gave testimony, so objection
on improper witness testimony was deemed waived
 Appeal by city of Quincy from jury verdict against city in favor of Bandera; jury
awarded Bandera damages for sexual harassment; At trial, Bandera testified in
detail; Coletta, a female police officer in Quincy, who had pending sexual
harassment claims of her own against the police also testified; Coletta had no

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actual knowledge of what happened to Bandera and was not qualified as an

expert
 Holding: Objection was not properly preserved
 Reasoning: It was not obvious to the judge that the new objections were to
impermissible lay witness opinion; court says Coletta’s statements are relevant
(see below), but that the objection was not properly preserved; if the objection—
improper opinion testimony by a lay witness—had been preserved, court would
have been tempted to reverse, it says.

Problems, p. 16
 1.1 – the defendant in a civil tort case, which was tried without a jury, appeals
judgment against him on ground that judge allowed the plaintiff to introduce
evidence that should have been treated as inadmissible hearsay. At trial,
defendant objected to evidence but not on hearsay grounds. If app court agrees
that evidence was inadmissible hearsay, under what circumstances should it
reverse judgement? Answer: F.R.E. 103(e); a court would take notice of plain
error affecting a substantial right even if the claim or error was not properly
preserved
 1.2 – to prove that certain testimony is not barred by privilege rules, the
prosecutor in a criminal case seeks to introduce an affidavit setting forth facts
that would make the privilege inapplicable to the testimony in question. Defense
counsel says the affidavit itself is inadmissible because it is hearsay. Pros says
rules of evidence do not apply to affidavit, because it is offered to prove
admissibility of other evidence. Who is right? Answer: Prosecutor is right;
F.R.E. 104(a); Court can consider the affidavit; court deciding a preliminary
question about whether a witness is qualified, a privilege exists, or evidence is
admissible. In so deciding, the court is not bound by the evidence rules…

RELEVANCE

F.R.E. § 402 General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:
 the United States Constitution;
 a federal statute;
 these rules; or
 other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

Meaning of Relevance
 Relevance is relational, not absolute
 How high is the standard? Not very high.
o Must advance the chain of logic, even if slightly
o “A brick not a wall.” (McCormick on Evidence)
o You are trying to build that wall, so you can show the jury the wall in closing
(Roth)—each item of evidence and its relevancy may not be apparent at first

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Analysis
 Step 1: 401. Is the evidence being offered relevant? What’s the chain of
inference
 Step 2: 402. Relevant evidence comes in unless some other
rule/statute/provision keeps it out
o One of the rules that might keep out relevant evidence is hearsay
 Step 3: 403. If not prohibited by another rule, does it meet 403 balancing test
o Taking into account probative value and whether dangers of unfair
prejudice, how does that balance; presumption in favor of admitting so

F.R.E. § 401 Test for Relevant Evidence

Evidence is relevant if:
(a) it has ANY tendency to make a fact more or less probable than it would be
without the evidence; and
(b) the fact is of consequence in determining the action.
probative value has to be substantially outweighed

Rule: Relevant if contributes to chain of logic

Knapp v. State
 Facts: Knapp is on trial for killing a local sheriff and his defense is self defense.
 Evidence: He testifies that he overheard people saying that the sheriff had killed
John and this promoted him to defend himself against Sheriff out of fear.
Government rebuttal witness – John actually died of alcoholism.
 Holding: Government rebuttal evidence is relevant.
 Reasoning: Chain of logic  if died of alcohol  less likely someone told
defendant sheriff killed him  less likely he feared for his life  less likely self
defense

Rule: Consciousness of guilt. Evidence is relevant if it advances the chain of

reasoning
U.S. v. Dominguez (1990)
 Facts: Dominquez was found guilty of kidnapping, robbing, and murdering Mitri;
 Evidence: after presenting evidence that a gunshot killed Mitri, the government
introduced evidence showing that Dominguez owned a gun, Dominquez asked to
replace barrel a week after Mitri’s death, and the shop owner saw scratches on
the barrel
 Defendant argument: Evidence about barrel replacement was irrelevant and
prejudicial
 Prosecution: Evidence is relevant because if the barrel was replaced it helps
explains absence of evidence directly linking him to homicide; behavior
consistent with consciousness of guilt
 Holding: The evidence is relevant because the replacement effort makes guilt
more probable…it suggests a consciousness of guilt
 Reasoning: Why is it relevant that defendant owned a gun? Advances chain
of reasoning. If no evidence that defendant had access to a gun, the inferential
leap is harder, doesn’t get prosecution all the way but it does move the ball. An
item of evidence need not prove conclusively the proposition for which it is

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offered…a brick is not a wall. No one claimed that this particular piece of
evidence proved guilt, it was merely one piece of evidence among many
 Government is free to introduce weak, as well as strong, evidence (Fed. R. Evid.
401)

Hypothetical
 D, a French national who was in NYC for business, is charged with sexual assault
of a maid at the Manhattan hotel where he was staying. Are the following
relevant?
 1) Evidence that D left hotel in a hurry after the incident (maybe looking at
footage or talking to witnesses, put together timeline); he’s leaving quickly
because he know he did something wrong; consciousness of guilt; at outset it
seems like it could be relevant
 2) Evidence that he boarded a flight for France later that day; if he had just
booked the flight that day or right after the incident, gets at consciousness of
guilt
 3) Evidence that he had non-consensual sexual encounters with other women?
Relevant, yes. May show a propensity to do this; is it analytically relevant, yes (it
might not come in for other reasons)
 4) D met his daughter for lunch immediately after leaving the hotel; could speak
to his state of mind, which might suggest he hasn’t done something wrong;
doesn’t seem like behavior of someone who thinks they have done something
wrong
 5) Immediately after the encounter, the maid cleaned another room at the hotel;
suggests that behavior may not be consistent with version of events that it was
not consensual
 6) Shortly after the encounter, maid spoke on the phone with her boyfriend and
spoke of money that might be recovered in a civil suit against DSK; would
suggest ulterior motive for making allegation against DSK, could go to bias;
highlighting that relevance can be related to lots of issues
 7) Evidence that maid lied about her background on immigration documents;
could have impeachment value; Relevance can impeach witnesses credibility
o Proving up case directly; anticipating defense arguments and issues of
witness credibility

Rule: Evidence of a pattern of practice is relevant, even if person testifying

doesn’t have actual knowledge of victim/plaintiff’s events in question
Bandera v. City of Quincy (1st Cir. 2003)
 Appeal by city of Quincy from jury verdict against city in favor of Bandera; jury
awarded Bandera damages for sexual harassment; At trial, Bandera testified in
detail; Coletta, a female police officer in Quincy, who had pending sexual
harassment claims of her own against the police also testified; Coletta had no
actual knowledge of what happened to Bandera and was not qualified as an
expert; defense objected to Coletta’s testimony
o Bandera’s statements  her own testimony is clearly releveant
o Coletta’s statements  establishes pattern and pattern of practice
 Holding: Coletta’s recitation of her own experiences were relevant
 Reasoning: Coletta’s statements show liability on part of supervisory officers
and on the city for a pattern of toleration of harassment

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Rule: The test of relevance is whether an item of evidence will have any value, as
determined by logic and experience, in proving the proposition for which it is
offered.
State v. Larson (Mont. 1992)
 Facts: Girl filed suit after she was thrown from a horse, which the defendant was
riding with her while intoxicated.
 Evidence: Prosecution sought to introduce evidence that defendant’s BAC was
above legal limit for riding a car
 Holding: Comparison of defendant’s intoxication with that which experts have
determined is too high to drive a car is relevant because it tends to make it more
probable that defendant’s alcoholism had impaired his ability to make sound
judgements

BALANCING: PROBATIVE VALUE & PREJUDICE

F.R.E. 403
 Once you have identified relevance, you need to think through how other rules
that apply
 Once you’re cycled through those and decided that there is no impediment for
admissibility you wind up at balancing test under 403
 We care about unfair prejudice, all evidence is prejudicial but evidence is “out” if
the balance tips so far so to speak
 However, F.R.E. 403 does not require prosecution to “sanitize” the crime

F.R.E. § 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of

Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
 unfair prejudice [concern: reliability of verdicts]
 confusing the issues [concern: reliability of verdicts]
 misleading the jury [concern: reliability of verdicts]
 undue delay [concern: efficiency]
 wasting time, or [concern: efficiency]
 needlessly presenting cumulative evidence. [concern: efficiency]

Rule: Relevant evidence is inherently prejudicial, but it is only unfair prejudice,

substantially outweighing probative value, which permits exclusion of relevant
matter under FRE 403. Additionally, a Court can be selective about what evidence
to admit under F.R.E. 403—if some of the evidence is unfairly prejudicial, but not
all—the Court can decide to admit some, but not all evidence.
U.S. v. McRae (5th Cir. 1979)
 Facts: D charged with killing wife by shooting her through head with deer rifle at
point-blank range. Defense argument: I shot her but it was accidental.
 Evidence: Photos of body. Defendant argued to keep photographs out as being
unfairly prejudicial. Unfairly prejudicial argument is that Jury is going to want to
hold somebody responsible after seeing this very gruesome photos and will not

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pay attention to the argument of it being accidental, they will want to hold
someone accountable
 Holding: Court admitted some photos but not all. The ones that showed the
angles and how she was shot, how the bullet went in, but did not show ones that
were gory just for being gory; angle might indicate it wasn’t an accident

When Prejudice and Probative Value Collide

Rule: When the prejudice of introducing evidence outweighs its probative value, the
Court should exclude it under F.R.E. 403.
Old Chief v. U.S. (1976)
 Facts: Old Chief arrested for committing violent crime and they found gun on
him. Old Chief had committed prior assault. Trial for gun possession by a
convicted fellon. Old Chief offered to stipulate that he had been convicted of a
felony in the past, but trial court allowed in evidence that the prior felony as an
assault. Defendant charged with: 1) assault with dangerous weapon, 2) using a
firearm in relation to a crime of violence, and 3) possession of firearm
 Evidence. The prosecution wanted to offer a record that they could read from —
Old Chief was convicted on such date for such crime (old conviction – assault
causing serious bodily injury)
 Relevance: Why is that previous conviction relevant in the case against Old
Chief? One of the elements is proof that you have been convicted of a felony! The
government must prove that he was previously convicted otherwise they can’t
continue
 Defendant argues: Unfair prejudice. Old Chief says record should not have
been admitted. He says I was willing to stipulate that I was a felon, but the jury
doesn’t need to hear what it was; he was willing to stipulate to the element
basically. Risk is that unfair prejudice substantially outweighs its probative value.
Similar to danger in McRae, similarly here, once the jury hears he has a prior
conviction for assault; here they are going to hear they have a prior conviction
for assault and there is propensity issue
 Holding: Court finds it was an abuse of discretion to admit record when
admission was available
 Reasoning: Balancing/Scales against probative value – record is relevant,
but prejudice outweighs probative value. The balancing might be different if old
conviction was for drugs, for example. We face more of a risk when old charge is
related to new charges
 Other Side of Old Chief: “The prosecution is entitled to prove its case by
evidence of its own choice.” Even though in this case SCOTUS said it was error
to allow in the record. The case still makes general propositions about
prosecution’s ability to prove how they want to or how they see fit. “Syllogism is
not a story.”
 Roth: If there is alternative evidence, that’s a reason for exclusion only if that
availability of alternative evidence makes this present evidence unfairly
prejudicial, cumulative. Decision to exclude may be based on availability of
alternatives—rule says “may exclude…”
o There is value in a narrative, goes towards drawing inferences necessary
for convictions
o If jurors expect certain evidence—and it’s disallowed—that may make them
begin to suspect why it is disallowed.

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 Note: difference between 405(b)—his having the conviction is an essential

element of the crime, but it’s not a character trait

Problem, p. 40
 2.1 – Criminal defendant charged in federal court with three counts of being a
felon in possession of firearm. Defendant’s defense is that he is not a felon.
Prosecutor wants to introduce evidence of rifles found in defendant’s basement.
Defense counsel objects on grounds of relevance and says they will stipulate to
weapons found in basement. Pros says they don’t want to stipulate, they want to
show the guns. Should the gov’t be forced to stipulate and not show the guns?
o Answer: Jury is going to want to see the guns. How is this different from
facts of Old Chief? Old Chief was specific to issue of talking about a prior
crime; this is different, it doesn’t hinge on a prior crime and doesn’t invite
the same propensity inference; these guns are related to this case
o Like McRae, F.R.E. 403 doesn’t require you sanitize the crime and here
the guns are part of the crime and there is no real issue of unfair prejudice
o Roth: Prosecution should be able to show the guns

Rule: If the potential probative value of a piece of evidence is marginal—and more

likely to confuse the jury, rather than serve a probative purpose—court can exclude
under F.R.E. 403
U.S. v. Noriega (11th Cir. 1997)
 Facts: Noriega charged with drug trafficking
 Evidence: Noriega wanted to offer testimony about what exactly he did for the
U.S. government, which would explain his unexplained wealth. He said he was a
spy for the CIA and that was important to his defense and the context of this
case, because it would show why he had “unexplained wealth,” (from gov’t work
rather than drug trafficking)
 Prosecution argues: wealth was relevant to proving drug trafficking because
they wanted to argue the money came from drugs; asking for inference about
where money came from
 Defendant argues: wants to say I was a high-level operative and that’s why I
have this money; it was from the U.S. (for being operative) and not drug
trafficking
 Holding: Trial court excluded it; It’s not probative enough, it would have
confused the jury as to the actual charge/issue
 Roth: Seems compelling but trial court kept it out; Roth thinks he had a
compelling argument for why it was important and trial court could have gone
either way. Could argue why can we go into the unexplained wealth issue if
you’re not going to allow defense to explain it or defend it fully

C. CONDITIONAL RELEVANCE

Overview
 When the admissibility turns on its relevancy and the relevancy then turns on the
existence of some other fact, the judge should ask whether a reasonable jury
could find that the fact exists
 Barry Bonds Example: Defendant is charged with perjury for lying about
steroid use; government wants to offer testimony from Bond’s ex girlfriend who

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observed Bond’s growing backne. Government said we will show, through our
next witness, why this is relevant (expert saying “steroid use gives rise to back
acne.” Relevant? Conditional fact is that steroid use leads to acne.
 104(b)  Relevance is conditional on the showing of some other fact; judge is
deciding whether to admit the evidence, but the judge is asking himself a
different question: Not, can I find it’s sufficient to support a find, but could a jury.
“The judge makes a preliminary determination whether the foundation evidence
is sufficient to support a finding of fulfillment of the condition.” (Advisory
Committee Note to FRE 104(b)). Standard is lower than 104(a)
o 104(a)  judge is saying that I am persuaded that this fact exists by a
preponderance
o 104(b)  I am not convinced, but can a jury believe that the fact exists by a
preponderance of the evidence

F.R.E. § 104(b) Preliminary Questions.

(b) Relevance that Depends on a Fact. When the relevance of evidence
depends on whether a fact exists, proof must be introduced sufficient to support
a finding that the fact does exist. The court may admit the proposed evidence on
the condition that the proof be introduced later.

Problem, p. 44
 2.2 – prosecution in a murder case wishes to demonstrate motive by proving
that, a week before his death, the victim assaulted the defendant’s cousin.
Defense counsel objects on grounds of relevance. Note: Defendant knowing
about assault is conditionally relevant fact. How should the judge rule? Does it
matter whether the judge believes: a) that the defendant knew about the assault,
or b) that the jury could reasonably conclude the defendant knew about the
assault?
o Answer: This is what matters because it’s conditional relevance
o Direct evidence – could have the cousin come in; evidence that defendant
talked to cousin
o Circumstantial – prove that they live together, so he would have known
about it; somebody could testify that they are together often

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HEARSAY
HEARSAY IS AN OUT OF COURT STATEMENT
MADE BY THE DECLARANT
OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED THEREIN

 Basic idea: We want to hear evidence from the person who saw the event in
question.
 We want guarantees on reliability with respect to the declarant.
 Hearsay is inadmissible unless it falls within an exception
 Write-up: “The [ ] is classic hearsay because it was offered for the truth of the
matter asserted, and it was not made under oath before the district court. Unless
the Report may be admitted under an exception to the rule against hearsay, the
district court erred by admitting it.”

F.R.E. § 802.
Hearsay is not admissible unless any of the following provides otherwise:
 A federal statute;
 These rules; or
 Other rules prescribed by the Supreme Court

THE HEARSAY RULE AND ITS RATIONALE

F.R.E. § 801 Definitions that Apply to this Article.

(a) Statement. ‘Statement” means a person’s oral assertion, written assertion,
or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. ‘Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or
hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in

Analysis
 (1) Who is the declarant?
 (2) Who is the fitness?
 (3) What is the statement?
 (4) Is the statement being offered for the truth of the mattered asserted?

What is Hearsay
 Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted therein.
 For evidence to be considered hearsay, it must
o (1) Be a statement
o (2) Have been made out-of-court

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o (3) Be used by the party offering the statement to show that the matter
asserted by the statement is actually true
 Statement. Out of court declarant said: Johnny killed James. Police come to
investigate scene and talk to declarant and ask him: How many people were
there? Declarant holds up two fingers—this is non-verbal conduct “intended as
an assertion.”
 Out-of-court. Outside of the very court proceeding in which the evidence is
being offered. A statement in a different court, is still considered out-of-court.
 Declarant. Not the person on the witness stand talking about the statement.
Sometimes they are one in the same.
 Truth of the matter asserted. A statement is being offered for the truth of the
matter asserted therein when a judge or jury is being asked to believe that the
statement itself is actually true. Not all out-of-court statements are being offered
for their truth…
o Your evidence professor says: “My name is Lady Gaga.” At commitment
hearing (to mental institution), dean of law school wants to introduce
statement to demonstrate professor’s mental incompetence.
o Is it hearsay? NO, it’s not being offered to prove the truth of the matter
asserted—i.e. that the professor was Lady Gaga—it’s being offered to prove
a statement of mind. The finder of fact is being asked to infer that your
professor is crazy. That is not, however, the truth of the matter asserted by
the Declarant in making the statement even though that is what the
statement implies, and the statement supports the theory of the
case.
 Basic problem of hearsay is forgoing a reliable chain of inferences (Laurence
Tribe)
o These factors are also the basis to the exceptions to hearsay—all of the
exceptions eliminate one of these concerns that are generally inherent in
all hearsay testimony, and otherwise justify exclusion

Concerns
 (1) Perception: Maybe witness misperceived what witness was doing or saying
 (2) Narration: Declarant might have misspoken or been misunderstood by
witness
 (3) Memory/Faulty: Declarant might have faulty memory of event
 (4) Sincerity: Declarant might have been lying

Why Are In-Court Statements Better

 (1) Oath – oath has an independent significance; out-of-court declarant has not
taken an oath
o Puts witness on notice that statements are punishable if false
 (2) Personal Presence – another justification for exclusion of hearsay is lack of
opportunity for observation of the out-of-court declarant’s demeanor.
 (3) Cross-Examination – lack of opportunity for adversary to cross examine
absent defendant is main justification for exclusion of hearsay. The witness
rather entrenches himself in the simple assertion that he was told so and leaves
the burden on the absent or dead declarant
 Answer questions
 Solve difficulties

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Rule/Principle: Raleigh is the epitome of what goes wrong if we don’t exclude

hearsay and require that the three conditions of Anglo-American trial law be applied
to the declarant
Sir Walter Raleigh (1928)
 Sir Walter Raleigh is on trial for treason. The main evidence against Raleigh is
the testimony of Lord Cobham and the testimony of Pilot Dyer. Lord Cobham was
interrogated in the Tower of London where he gave his confession, implicating
Raleigh. Pilot Dyer testified at trial that a Portuguese man approached him and
said that the King would never be crowned because Cobham and Raleigh would
kill him
o Lord Cobham never came to court; The Portuguese man who Pilot Dyer
testified about never came to court
 Here, there are two instances of hearsay: 1) Lord Cobham’s admission, 2) Dyer’s
testimony
 Furthermore, as we will see later, there is an issue of a Confrontation Clause
violation
o Lord Cobham’s admission

Example of Hearsay
Rule: Hearsay rule prohibits use of a person’s assertion, as equivalent to testimony
of the fact asserted, unless the assertor is brought to testify and can be cross
examined.
Leake v. Hagert (N.D. 1970)
 Facts: Allen Leake sued Hagert for negligent driving; Hagert defended by saying
the accident was not proximately caused by her negligence but by the driving/car
maintenance of Leake
 Evidence: testimony of adjuster who investigated the accident. Aadjuster
testified that Leake’s son told him that tail light had been out for some time.
Leake objected to certain evidence
 Holding: Son’s statement was hearsay and should have been excluded, BUT
such error was not prejudicial (thus lower court affirmed)
 Reasoning: We have a witness testifying about what an out-of-court declarant
(the son) said, which is being used for the truth of the matter asserted. They
want to show the light was out! It’s a fact of consequence here.
o Once the appellate court determines that the trial court erred in admitting
the statement of Leake’s son into evidence, the court must determine on
appeal whether such erroneous admission was prejudicial and constituted
reversible error
o Harmless error: Court finds this was a harmless error because the
hearsay admitted was cumulative of other evidence on the record

Problem, p. 52
 3.1 – Autopsy showed that arsenic was in stomach of man who died. Former
lover tried before court. Guy had diary which was saying when he saw the lover.
Answer: Written hearsay. Being offered to show that she was there when he was
sick—it’s being used as a chronology. Being offered for the truth of what is

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asserted (that former lover poisoned him and killed him). Judges were right to
exclude, unless falls within some exception

Non-Hearsay Uses of Out-of-Court Statements

 Truth of the statement is NOT relevant. What is said is important.
 Not all out-of-court statements qualify as hearsay because not all out-of-
court statements are being offered for the truth of the matter asserted:
o 1) Circumstantial evidence of State of mind of the Declarant
 Just because an out-of-court statement is relevant to the theory of
the case—does not mean that the statement itself is being used to
prove the truth of the matter asserted therein
 Examples: Lyons, Parry
o 2) Effect on Listener
 The statement could be offered to display the listener’s knowledge or
intent
 Example: Subramaniam, Saavedra
o 3) Impeachment
 Out-of-court statement being offered to show that it was made and
that the witness has been inconsistent and arguably unreliable
o 4) Verbal Acts
 Words themselves do no matter, just the fact of speech
 Legally operative language (“Peter is a slimeball and plagiarist” in a
defamation case Peter brings against Don. Peter does not want to
prove the truth of the statement—in fact he asserts it is wrong—he
just wants to prove that Don made the statement.)
 Examples: Montana, Hanson v. Johnson
 This is also where F.R.E. 105 Limiting Instructions come in

F.R.E. § 105 Limiting Evidence that is Not Admissible Against Other

Parties or for Other Purposes.
If the court admits evidence that is admissible against a party or for a purpose—
but not against another party or for another purpose—the court, on timely
request, must restrict the evidence to its proper scope and instruct the jury
accordingly.

Limiting Instruction: Judge should instruct jury that they should only use the
statement for its non-hearsay use. “You may consider the evidence you just heard

Statement Not Being Offered for the “Truth”

(1): When out-of-court statements are NOT offered to prove the truth of the matter
asserted, not hearsay.

Rule: Evidence is not considered hearsay when we are not concerned with the
actual facts the statement asserts, but rather a belief or mental state the statements
prove, because in that case the evidence is not being offered to prove “the truth of
the matter asserted therein.”
Lyons Partnership v. Morris Costumes (4th Cir. 2001)

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 Facts: Barney trademark case.

 Out of court statement: Duffy the dragon costume incited school kids to say:
“Barney, Barney.”
 Relevant? Children believed it to be Barney. It’s there to show there was
confusion.
 Holding: Not hearsay. Trial Court should not have dismissed as unreliable
hearsay
 Reasoning: Statements were not introduced to prove truth of the matter
asserted—i.e. that the persons wearing the Duffy costume were in fact Barney—
but rather to prove that the children and the newspaper reporters expressed
belief that those persons were Barney.
o 1) statement ✓, 2) out-of-court ✓, 3) truth of the matter? X. It’s not being
offered to prove that people actually thought it was Barney

Rule: Non-hearsay use of an out-of-court statement includes statements showing

knowledge of a belief, rather than actual truth of the statements (from which the
belief derives).
U.S. v. Parry (5th Cir. 1981)
 Facts: Drug conspiracy case. Defendant Parry did not deny participating but said
he was working under the good faith belief that it was for agents, helping to
assist locate drug dealers.
 Out of court statement: Defendant’s mother testifies that her son told her that
the people who kept calling her government agents.
 Defendant argues: he did not have the requisite intent for either crime,
because he thought he was working for the agents. He claims he knew they were
agents. Parry argued that this testimony was not to prove that the person was
actually a narcotics agent, but rather to show that Parry had knowledge of the
agent’s identity when they spoke.
 Issue: Whether Dist. Court erred in excluding certain testimony by the
appellant’s mother as inadmissible hearsay?
 Holding: Not hearsay. Ruling reversed and new trial ordered — because the
court is not able to say that the jury was not substantially influenced by the error
 Reasoning: Statement was not being offered for truth that they were actually
agents, but rather that Parry thought they were
o Trying to prove  he believed government agents were calling
o Truth of the statement  they were government agents ≠ BELEIVING
they were government agents

Rule: A statement is not hearsay when it is being offered to show a mental state of
the defendant.
Subramaniam v. Public Prosecutor (Privy Council 1956)
 Facts: Defense put forward was that defendant had been captured by terrorists
and was acting under duress; he described how he was forced to accompany the
terrorists and carry ammunition.
 Out of court statement: Defendant wants to testify about statements the
terrorists who kidnapped him made.
 Holding: Trial judge was in error; statements are not inadmissible as hearsay
 Reasoning: Hearsay? No. They are being offered to show mental state of
defendant; slightly different from Parry, where it was also mental state but in

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that case defendant was declarant and out of court statements suggested
something about him. Terrorists statements had effect on defendant, regardless
of whether or not their statements are true, it goes to showing/proving his claim
that he was under duress.

Verbal Acts
(2): When the words are a relevant action, or of legal effect, it is not hearsay.

Rule: Statements can be considered circumstantial evidence of how a crime was

committed and are not considered hearsay if they are not being offered to prove
that actual truth of the statements
U.S. v. Saavedra (9th Cir. 1982)
 Facts: Inmates involved in operating scam would call numbers in phonebook,
pose as LEO, obtain credit card information, and order money with that
information at Western Union
 Holding: Not hearsay.
 Reasoning: The statements the inmates made were actus reus of the crime, an
essential element of the facts to show CC fraud. No one is claiming that these
were actually bank security officers.
o The fact that the words were said is probative. Testimony objected to was
not offered to prove that the statements made by the unidentified callers
were true—i.e. that they were in fact law enforcement officials investigating
credit card problems—but this testimony was introduced to show how the
credit card numbers were fraudulently obtained
 Roth: No truth assertion here.

Performance Utterances/Verbal Acts

Rule: Performance utterances are not within the scope of hearsay because they do
not make any truth claims—they are words have significance for the fact that they
were said.
Hanson v. Johnson (Minn. 1924)
 Facts: Lease entitled farm owner to 2/5 share of tenant’s crop. Action for
conversion and trying to prove that certain corn was owned by the plaintiff
 Out of court statement: “Mr. Hanson, here is your corn for this year; this
belongs to you, Mr. Hanson.”
 Holding: Not hearsay. These words were part of the creation of the contract
being litigated and therefore had operative effect.
 Reasoning: The verbal part of the transaction between plaintiff and the tenant
was necessary to prove the fact. They aid in giving legal significance to the
conduct of the parties.
o Although the tenant's statement might appear to be hearsay because it is an
out-of-court statement apparently offered to prove the truth of the matter it
asserts, it is not hearsay because the making of the statement had the legal
effect of partitioning the corn
o Could ask for an instruction here

Creaghe v. Iowa (10th Cir. 1963)

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 Testimony was admissible since it was part of oral agreement to cancel insurance
policy
 It is enough here to determine only whether defendant made such statements
about cancelling insurance, not the truth behind whether he was truthful in
wanting to cancel his insurance

Performance Utterances
Rule: Performance utterances are not within the scope of the hearsay rule because
they do not make an truth claims.
U.S. v. Montana (7th Cir. 1999)
 Facts: Bank robbery case. Dodd committed robbery. Montana drove getaway
car. At Montana’s trial, Dodd testified that Montana had not known that Dodd
was planning to rob the bank.
 Out of court statement: Deputy Marshal heard Dodd tell Montana to tell
Montana’s father that “it’s going to be $10,000” for the favorable testimony;
Dodd gave Montana’s lawyer a note saying that Dodd demanded money in
exchange for testifying favorably.
 Montana claims that Marshall’s testimony about Dodd’s out-of-court statement
was hearsay
 Gov’t argues that it was admissible as “verbal act”—which commits speaker to a
course of action.
 Holding: Not hearsay.
 Reasoning: The testimony was not being offered to prove there was a promise to
pay $10,000 but rather simply that a demand was made.

Problems
 3.2 – The Defendant in a prosecution for assault with a deadly weapon testifies
that he shot the victim, after the victim pulled out a hunting knife and said, “I’m
going to slit your throat.” Is the victim’s statement hearsay? Answer: Victim’s
statement is not hearsay, because it does not go to truth of whether defendant
slit victim’s throat but to intent/motive and that he did it in self defense
 3.3 – After a gossip magazine describes a soap opera actress as “perpetually
intoxicated” the actress sues for libel, and seeks to introduce a copy of the
magazine. Answer: declarant – magazine, statement – written, to truth of the
matter – no; this is a libel case not related to her alcohol intake/intoxication;
article is not being offered for the truth of what is asserted
 3.4 – To prove falsity, the actress seeks to introduce a newspaper article
describing her as “well known for shunning drugs and alcohol.” Is the article
hearsay? Answer: Yes, she is offering evidence to prove truth of the matter
asserted; here the statement (written) by the declarant (newspaper) is getting at
the truth of whether she is perpetually intoxicated
 3.5 – To prove absence of malice, the gossip magazine calls one of its reporters
who testifies that a director who worked with the actress told the reporter the
actress “always had booze on her breath.” Is the director’s statement hearsay?
Answer: no. Part of libel is malice (proving that the newspaper knew it was
false). This evidence is NOT to show that she always had booze on her breath,
only that the newspaper had reason to believe it (and therefore was not malicious
in article).

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 3.6 – A patient injured during surgery sues the surgeon and the hospital. To
prove negligence by the hospital, the plaintiff seeks to prove that, a year before
the surgery, a nurse told the hospital that the surgeon was incompetent. Is the
nurse’s statement hearsay? Answer: No.
 3.7 – A developer brings an action to quiet title to a tract of farmland. A farmer
intervenes claiming that she owns the land. To prove adverse possession, the
farmer seeks to call witnesses who have heard her refer to the land as hers.
Would this testimony recount hearsay? Answer: no, statement seems to be made
to show that she had referred to the land as hers and that the statement was
made, but not that it actually was hers. The content of the matter asserted has
operative effect in the world, it’s a verbal act. Thus, the statement is not hearsay,
because claiming possession to the land is a required element of the crime.,
because there is significance to the words being said that is independent of them
being asserted as a belief.
 3.8 – The plaintiff in an automobile collision case calls the police officer who
investigated the accident. The plaintiff seeks to have the officer testify that an
eyewitness, who can no longer be located, told the officer in a tape-recorded
interview that the other driver was speeding. The plaintiff seeks to play the tape
for the jury. Does any of this evidence involve hearsay? Answer: Tape recording
is hearsay, it is being offered to prove that the driver was speeding. There is no
difference between the tape recording and the officer recounting himself on the
stand—in both circumstances it is being offered as an out-of-court statement to
prove the truth of the mattered asserted therein.
 3.9 – The strength of an alibi offered by a criminal defendant depends on when
the defendant arrived at a bar. The prosecution calls a waitress at the bar, who
testifies that shortly before the defendant arrived, the waitress asked the
bartender what time it was, and the bartender said “Nine-thirty.” Is the
bartender’s statement hearsay? Answer: waitresses’ statement about the
bartender alone would be hearsay, but if bartender also testifies then no
 3.10 – To prove that a testator was incompetent, his son seeks to prove that the
testator claimed to have a summer house on Mars. Is the testator’s claim
hearsay? Answer: no, it’s not being offered to literally prove that he had a house
on Mars but rather to show the mental state/incompetence
 3.11 – To prove that a testator was incompetent, his son seeks to prove that the
testator’s coworkers complained that the testator kept dead fish in his desk. Are
the complaints hearsay? Answer: yes. The son is seeking to prove that the father
did keep dead fish in his desk. They would have to bring the coworkers into court
to testify.

Implied Assertions
 F.R.E 801(c) and most state codes of evidence define hearsay to include only
“statements” offered to prove the truth of what they assert. “Statements” are in
turn defined to include nonverbal conduct only when it is intended as an
assertion/form of communication.
o Non-assertive conduct—conduct NOT intended as communication—is NOT
considered hearsay because it is NOT a statement. Rationale is that non-
assertive conduct is less subject to fabrication than assertive conduct and
is therefore more reliable.

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 F.R.E. approach: We read F.R.E. as saying that implied assertions do not

count as hearsay. Drafters of F.R.E. were less concerned about implied
assertion because of sincerity; with hearsay, we are worried about declarant
lying, but with implied assertions the fear isn’t as strong when someone didn’t
set out to communicate anything
o Cf with common law approach: Wright v. Tatham – common law view that
implied assertions were subject to hearsay; “Proof of a particular fact
which is not of itself a matter in issue, but which is relevant only as
implying a statement or opinion of a third person on the matter in issue, is
inadmissible in all cases where such a statement or opinion not on oath
would be of itself inadmissible…”
 Majority – U.S. v. Zenni
 Minority – Dullard

Rule: Majority 801(a)(2) removes implied assertions from the definition of

statement and from the hearsay rule. With implied assertions, we are taking a trip
through the declarant’s mind (Tribe)
U.S. v. Zenni (E.D. Ky. 1980)
 Facts: Government was conducting lawful search at Defendant, Humphrey’s,
home; police were looking for evidence of gambling/booking; they answered calls
while at the house; people were calling to place bets: “Put $2 on Paul Revere in
the third at Pimlico.”
 Government: wants to introduce this evidence to show that the callers believed
that the premises were used in betting operations; the existence of such belief
tends to prove that the property/house was used for betting operations;
statements offered to show declarants’ belief in a fact
 Defendant: Objects to statements being introduced on hearsay grounds
 Holding: 801(a)(2) removed implied assertions from the definition of statement
and from the hearsay rule
 Reasoning: If people are trying to place bets at the premise, then those calls
have great probative value. Utterances of absent declarants are not offered for
the truth of the words; statements are only inadmissible as hearsay if they were
intended as assertions concerning the matter sought to be proved. We don’t
know who the declarants are, we are attaching significance to their thoughts.
 From the hearsay standpoint, implied assertions are not nearly as vulnerable as
an express assertion of the fact which the evidence is offered to establish
(Falknor)

Rule: Minority Rule: Implied assertions inadmissible as hearsay

State v. Dullard (Iowa 2003)
 Facts: Dullard convicted of possession of pseudoephedrine, which is used to
manufacture meth; police also found handwritten note - basically a friend wrote
to Dullard saying police are watching you. Issue: Whether implied assertions
constitute hearsay?
 Arguments: Government/State: State argued that the note was not offered to
prove the truth of the matter asserted (that police literally were watching him)
but it was used to connect Dullard to the items in the garage used to
manufacture meth. The note asserts that he or she is nervous and that the police
are watching the house—and claims it was not hearsay because it was not

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offered to prove the truth of the assertion, but a different proposition inferred
from the words of warning
 Holding: Implied assertion from handwritten note is inadmissible as hearsay
 Reasoning: Ambiguity! We may be getting it wrong! There is more ambiguity
of what the declarant actually believes. Court says it can be tempting to minimize
the dangers of hearsay when a declaration is an implied assertion but four
dangers of admitting hearsay: 1) erroneous memory, 2) faulty perception, 3)
ambiguity, and 4) insincerity
o If an express assertion is insincere, the implied assertion derived from the
expressed assertion will also be similarly unreliable
o If the declarant of the written note in this case had intended to declare his
or her belief that Dullard had knowledge and possession of drug lab
materials, the note would unquestionably constitute hearsay
 Court recognizes that this approach will have tendency to make most implied
assertions hearsay

Texas Rule 801 v. FRE

 Texas Evidence 801: “(a) Statement. A Statement is (1) an oral or written
verbal expression or (2) nonverbal conduct of a person, if it is intended by the
person as a substitute for verbal expression.”
 Matter asserted – we have a definition of matter asserted which we don’t have in
FRE
o (c) Matter Asserted. “Matter asserted” includes any matter explicitly
asserted, and any matter implied by a statement, if the probative value of
the statement as offered flows from declarant’s belief as to the matter
 Think about this applied to Dullard. Under Texas’ rule, would note be treated as
hearsay? Probative value – shows that person writing note believed
establishment was being used to do something illegal. Would be treated as
hearsay under Texas. Roth likes this solution
 Roth also likes Maryland approach (5-801)
o If something is more in the nature of implied assertion, it’s not necessarily
non-hearsay, leave it up to the court’s to develop whether hearsay or not
o Rule also does not attempt to define when an assertion is offered for
something other than truth
o Leaves discretion to trial courts, where it is not offered for express
statement therein

Problems, Page 72
 3.12 – A criminal defendant charged with murder claims that the victim’s
husband killed her. He seeks to introduce evidence that the victim’s husband fled
the country after the victim was found dead. Would this evidence involve hearsay
under the view expressed by Baron Parke in Wright v. Tatham? Would it involve
hearsay in federal court today? Answer: here, under Wright, we would say that
evidence husband fled the country after the victim was found dead is an implied
assertion not admissible as hearsay; the implied assertion is consciousness of
guilt
o FRE – admissible as hearsay because implied assertion not “statement”
under FRE; We read the FRE to say that implied assertions are not

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hearsay. Implied assertion is that husband has reason to flee the country
because he did something illegal
 3.13 – A traveler contracts pneumonia after a three-hour bus trip through
upstate New York in January. He sues bus company for cost of his hospitalization,
claiming that he got sick because driver failed to keep bus adequately heated.
Bus company seeks to prove that none of the other passengers on bus
complained about the temperature and that two passengers took off their
sweaters midway through the trip. Would any of this evidence involve hearsay
under Wright v. Tatham? Under the FRE? Answer: Under Wright, - this would
be inadmissible as hearsay; in Wright, the purpose of the offer was to show that
the writers of the letters believed the testator was able to make intelligent
decisions — being offered to prove truth of the matter;
o Under FRE – No, this is an implied assertion under 802(a)(2) and would
be admissible as hearsay; We read the FRE to say that implied assertions
are not hearsay
o Implied assertion in people taking off their sweaters is that bus is hot, not
cold
 3.14 – A police officer testifies in a murder case that when she asked the victim
who shot him, the victim pointed to a picture of his wife. Would Baron Parke
treat this evidence as hearsay? Would the Federal Rules of Evidence? Answer:
Yes, the declarant’s pointing is a non-verbal intended assertion, not implied
assertion; it’s considered a statement under Rule 801(c)
 3.15 – The prosecution in a burglary case seeks to prove that a blood-hound,
after sniffing a pair of gloves left at the crime scene, led the police back to the
defendant’s house, and then barked quietly when the defendant answered the
doorbell. The dog’s handler offers to testify that the dog is trained to bark quietly
when confronted with the source of the scent the dog has been tracking. Would
any of this evidence involve hearsay under Baron Parke’s view? Under the
Federal Rules of Evidence? Answer: No hearsay problem – statements can only
be made my people; would a person’s barking constitute hearsay? Yes, it would
be hearsay, but animal conduct is generally not treated as hearsay
 3.16 – See p. 73 – No, Lord Ackner was wrong. The evidence seems relevant –
trying to show the belief of declarant that it was possible to buy drugs from this
person
 3.17 – Britain’s Criminal Justice Act 2003 restricts the definition of hearsay to
statements that appear to have been intended by the speaker (a) to cause
another person to believe the matter, or (b) to cause another person to act . . . on
the basis that the matter is stated. Does this provision effectively overrule Wright
v. Tatham? Is the definition of hearsay in Britain now the same under the Federal
Rules of Evidence? Answer: This would seem to define “assertion” more than the
FRE does and is more closely in line
 3.18 – When the police officers enter an apartment where a woman has been
shot to death, they hear a parrot saying, “Polly wanna cracker . . . Polly wanna
cracker . . . Pretty bird . . . HARRY DON’T SHOOT! . . . Pretty bird.” If the
victim’s husband, Harry is prosecuted for the murder and the officers testify at
trial what tey heard, would their testimony recount hearsay under the Federal
Rules of Evidence? Under baron Parke’s view? Answer: Parrot is analogous to a
recording since it repeats what other people say. Declarant is the person who
said the thing (not the parrot repeating the thing)

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o F.R.E. – if it’s an implied assertion, it’s not treated as hearsay; would need
to prove the implied assertion is that Harry is standing right in front of the
person with a gun
o Common law – hearsay
o Texas – hearsay

Checklist
1. Is there an out-of-court statement, such as written or oral statement, or a non-
verbal gesture? (F.R.E. 801(a))
a. If yes, step 2
b. If no – no hearsay problem. I.e. photograph or physical evidence
2. Did the declarant intend to make an assertion? (F.R.E. 801(a))
a. If yes, step 3
b. If no, there is no hearsay problem under F.R.E. (implied assertions)
3. Is the out-of-court statement being offered to prove the truth of the matter
asserted? I.e. looking at the statement alone, is the finder of fact being asked to
believe that the statement is true?
a. If yes, statement is hearsay
i. Move on to possible exceptions
b. If no, the finder of fact is not being asked to believe that the statement
itself is actually true, and the statement is not being offered for its hearsay
use
4. Before you determine that a statement is hearsay (3.b.) double check whether it
falls under
a. State of mind
b. Effect on listener
c. Impeachment
d. Verbal act
i. If yes, it is not within the hearsay definition
ii. If no, it is hearsay

CONFRONTATION CLAUSE
Overview
 Sixth Amendment Confrontation Clause – gives every defendant the right “to
be confronted with the witnesses against him.”
 Controversy surrounds: when the constitution prohibits the introduction, against
a criminal defendant, of hearsay from a declarant who does not testify
 Supreme Court has found it difficult to say exactly how the two prohibitions—
hearsay and confrontation clause—overlap and in what ways the right to
confrontation diverges from the hearsay rule

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 Ohio v. Roberts (U.S. 1980) – read Confrontation clause to allow hearsay of this
kind so long as the evidence fell within a well-established exception to the
hearsay rue or carried comparable “indicia of reliability.” Overruling of Roberts
means that a good deal of hearsay not excluded by the hearsay rule (because it
falls within one of the exceptions) is now nonetheless inadmissible if offered
against a criminal defendant

Requirements
 (1) Only applies to criminal cases
 (2) Only protects the accused
 (3) Offered for the truth
 (4) The right is satisfied if the declarant is available for cross examination

Two Levels of Analysis in Criminal Cases

 (1) Is it hearsay?
 (2) Confrontation Clause Requirements
o Criminal case?
o Protecting person accused?
o Witness not available for cross examination?
o If not available, was there an opportunity for cross examination?
 (3) Is the statement being offered testimonial? (Crawford)
o Primary Purpose test (Michigan v. Bryan) (test today)
 Existence of an on-going emergency (Davis)
 Relative formality of the encounter
 Statements and actions of both the declarant and interrogators
o Objective standard: In deciding whether a statement to police is
testimonial, the relevant inquiry is the purpose that reasonable participants
would have had in engaging in the discussion. As ascertained from the
individual’s statements and actions, and the circumstances in which the
encounter occurred.
 (4) Exceptions
o Dying declarations
o Forfeiture by wrongdoing

Rule: The Supreme Court of the United States has ruled that an out-of-court
“testimonial” statement may be used against the accused only if the declarant is
either: 1) available for cross examination; OR, 2) Proved to be unavailable and the
testimonial statement was previously subject to cross-examination by the accused.
Crawford changes the approach (in Roberts) from being about the reliability of the
hearsay, to it having to be subject to cross examination. Yet, Crawford never really
defined “testimonial.”
Crawford v. Washington (U.S. 2004)
 Facts: Crawford stabbed Lee. Crawford claims self defense. Police gave
Crawford and wife, Sylvia, Miranda warnings and interrogated them. Crawford
said he was upset about earlier incident in which Lee had tried to rape Sylvia.
Crawford and Sylvia found Lee at apartment and fight ensued. Crawford charged
with assault and attempted murder. Sylvia did not testify because of state marital
privilege. The privilege does not extend to a spouse’s out of court statements
admissible under a hearsay exception. Issue: Can police offer tape-recorded

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statements made by Crawford’s wife to the police later that night describing the
events?
 Sylivia’s Statement:
o Made in police custody
o Potential Suspect
o Implicated her husband, which undermined his self-defense claim
o Trial court admitted her statements
 Arguments: State sought to introduced Sylvia’s tape-recorded statements to
the police as evidence that the stabbing was not in self defense. Arguing that
Sylvia admitted she led Crawford to Lee’s apartment. State invoked hearsay
exception for statements against penal interest.
o Defendant argued that state law notwithstanding, the evidence would
violate his federal constitutional right to be “confronted with the witnesses
against him.” If the statement gets in under the Wash. Hearsay exception,
defendant argued that admitting the evidence would violate his federal
constitutional right to be “confronted with the witnesses against him.”
 PH: Trial Court jury convicted Crawford; Washing COA reversed; Wash.
Supreme Court reinstated the conviction
 Holding: Court holds that the Confrontation clause applies to both in-court and
out-of-court testimony, and that its application to out-of-court statements does
not depend upon the law of evidence
 Reasoning: Even if the Sixth Amendment is not solely concerned with
testimonial hearsay, that is its primary object, and interrogations by law
enforcement officers fall within that class. “Dispensing with confrontation
because testimony is obviously reliable is akin to dispensing with jury trial
because a defendant is obviously guilty. This is not what the Sixth Amendment
prescribes.”
 Court uses history as a justification for why
o Raleigh – Raleigh demanded that the judges call his accuser
o One recurring question was whether the admissibility of an unavailable
witness’s pretrial examination depended on whether the defendant had had
an opportunity to cross examine
o King v. Paine – Court ruled that even though witness was dead, his
examination was not admissible where “the defendant not being present
when it was taken before the mayor…had lost the benefit of cross
examination.”
o The First Congress solidified the right to confront by including the
Confrontation Clause in the Sixth Amendment
 History supports two inferences from the 6th Amendment:
o 1) The principal evil at which the Confrontation Clause was directed was the
use of ex parte examinations — Marian Statute practices — as evidence
against the accused in criminal procedure. 2) The Confrontation Clause was
supposed to operate independently of evidentiary rulings.
o Leaving the regulation of out of court statements to the law of evidence
would render the Confrontation Clause powerless to prevent even the most
flagrant inquisitorial practices. For instance, an ex parte examination might
be relevant and admissible under modern hearsay rules, but the Framers
would certainly not have condoned them

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o Roberts test – allows a jury to hear evidence based on a mere judicial

determination of reliability. Confrontation clause reflects a judgement about
reliable evidence, but not just its reliability—how the reliability can best be
determined
 Rheinquist, O’Connor Concurrence: Justices think the Court could have
reversed the judgement without re-weighing the reliability factors. Cross
examination may be superfluous in any given instance
 What Crawford Tells us About Tesimonial? At a minimum, it covers prior
testimony at a preliminary hearing, grand jury, at a former trial, and to police
investigation.

Factors Relevant in Determining Whether a Statement is Testimonial

 To whom are statements made
 Motive
 Formality of interview
 Place of interview
 Can the situation be described as ongoing emergency

As an Attorney, What Factors Would You Look For?

 Where statement was made?
o Non-testimonial  school, work
o Testimonial  police station
 Who was statement made to? Who is taking the statement?
o Non testimonial  teacher, friend
o Testimonial  police, authority figure, bad fact generally
 When the statement was given in relation to when crime happened?
o Want to argue not testimonial  as it is happening, i.e. 911 call
o Want to argue testimonial  after the fact

Primary Purpose & Testimonial

Rule: Primary Purpose Test – Statements are non-testiominal when made in the
course of police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistances to meet an
ongoing emergency.
Davis v. Washington (U.S. 2006)
 Facts: Victim made statements to 911 emergency operator during and shortly
after her boyfriend’s violent attack. Holding: Court held statements were not
testimonial; there was no indication on either side that what they are trying to do
is collect evidence.

Rule: Statements are testimonial when the circumstances objectively indicate that
there is no such ongoing emergency and that the primary purpose of the
interrogation is to establish or prove past events potentially relevenat to later
criminal prosecution.
Hammon v. Indiana (U.S. 2006)
 Facts: The victim, after being isolated from her abusive husband, made
statements to police that were memorialized in a “battery affidavit”
 Holding: Statements testimonial. At this point prosecution was collecting
evidence, affidavit. As opposed to 911 call where trying to figure out what he

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needed to be done to proceed with investigation. The ongoing emergency

effectively over, parties had been separated, police interrogating her would have
been using affidavit to collect evidence
 Key distinction between Davis and Hammon: At the moment when
statements are made, was there an ongoing emergency, were the people hearing
the statements trying to give help or collect evidence?

Rule: In analyzing whether a statement is testimonial, ask, whether in light of all

the circumstances, viewed objectively, the “primary purpose” of the conversation
was to “create an out-of-court statement for trial testimony.” If no, then the
statement is not testimonial and falls outside bounds of the Confrontation Clause.
Michigan v. Bryant (U.S. 2011)
 Facts: Bryant was convicted of murder based on statements victim made to the
police after they found him lying on the ground at a gas station with a gunshot
wound. Victim told police that he was shot through the door and then drove to
gas station where police found him. In Hammon, we knew who the assailant was.
Here, we don’t know who the shooter is. No gun in Crawford, Davis or Hammon.
Prosecution – better arg that there was an ongoing emergency because a gun is
involved
 Holding: Statement is not testimonial – it was to enable police assistance to
meet an ongoing emergency. Bryant adds a little more to our understanding of
primary purpose “As in Davis, the primary purpose of an interrogation is to
respond to an ongoing emergency, its purpose is not to create a record to trial
and thus is not within the scope of the clause…”

Statements Made Other Than to Police Officers

Rule: Tk.
Ohio v. Clark (U.S. 2015)
 Facts: Clark (Dee Dee) was TT’s pimp; Clark & TT were girlfriend/boyfriend and
lived with TTs two kids: LP 3 year old and AT 18-month old; Clark sent TT to D.C.
to work as prostitute; on one trip, TT left her kids in Clark’s care. Clark took LP
to school, kid had marks on his face, teachers asked him persistently “who did
this? What happened to you.” LP said “dee dee.” Grand jury indicted Dee Dee on
five counts of felonious assault, domestive violence, child endangerment
o Teachers testified  no testimony from LP (kid)
o Defendant argued: Moved to exclude testimony about LP’s out-of-court
statement under the Confrontation clause
 PH: Trial Court denied motion, ruling LP’s responses were not testimonial. App
Court held the statements violated the Confrontation Clause. Ohio Supreme
Court affirmed holding that the teachers acted as agents of the state, under the
mandatory reporting law, eliciting the equivalent of live, in-court testimony.
Issue: Whether statements to those other than law enforcement are subject to
confrontation clause?
 Holding: The statements LP made to his teachers are admissible and
nontestimonial, thus not subject to the confrontation clause
 Reasoning: In determining that the statements are nontestimonial and thus not
subject to the Confrontation clause, Court looks to: nature of where questioning
took place (at school, not at police station), LP’s age, LP was speaking to his

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teachers (not law enforcement/police officers), and the “primary purpose” of the
questioning (to end the emergency/harm)
o When Analyzing Look at Person, Place, Who the Statements Were made to:
 Declarant’s (young) age (lack of understanding of justice system)
 Statements made to: Teachers, not officers
 Place: School, not police station
o LP’s statements occurred in the context of an ongoing emergency, involving
suspected child abuse—the questions and LP’s answers were aimed at
ending the abuse (like the emergency 911 call in Davis)
o No indication that the primary purpose of the conversation was to gather
evidence for Clark’s prosecution (unlike Hammon)
 Concurrence (Scalia): The Confrontation clause categorically entitles a
defendant to be confronted with the witness against him, and the primary
purpose test sorts out, among the many people who interact with the police
informally, who is acting as a witness and who is not; he’s concerned with the
Court’s dicta—statement on the primary purpose test as a condition
 Concurrence (Thomas): Thomas’ concern is level of formalness, is the
statement sworn, etc. Would assess whether the statements bear sufficient
indicia of solemnity to qualify as testimonial, such as affidavits, depositions, prior
testimony, or confessions, or statements obtained in a “formalized dialogue”

Problems, p. 91–92
 3.19 – In a prosecution of Richard for bank robbery, defense seeks to call PI who
will testify about an interview she conducted with a waitress. The waitress told
PI that Richard was at her restaurant during time of robbery. Answer: hearsay –
yes (statement was offered as evidence to prove D was in the restaurant at time
of robbery (truth of matter asserted in statement), but would not violate
confrontation clause because testimony is being offered by the defense
 3.20 – In a murder prosecution, the prosecution seeks to introduce the written
report of the victim’s autopsy, to prove the victim was killed by a bullet that
entered from back of victim’s head. Coroner who conducted autopsy and prepare
report has since died. Is the report hearsay? Would it violate CC? Answer:
hearsay – yes; seems like confrontation clause issue, too. Open question as to
whether ME reports are always testimonial. Courts have gotten around Crawford
in terms of arguing that ME reports are not testimonial, because when the ME
did the report, we’re in fact finding state. Best argument for pros? ME has no
stake!
 3.21 – In statutory rape prosecution of Devon, prosecutor seeks to call
Warrington, who will testify that he was present when Devon met the victim, and
that the victim told Devon that she was underage. Is this evidence hearsay?
Violation of CC? Answer: Not hearsay in this context if offered for limited
purpose that defendant had notice that she was underage. Relevant in statutory
rape prosecution. If you were representing defendant, you would seek a limiting
instruction. CC violation? Not testimonial. Warrington, witness, going to testify
about statement victim (declarant) made out of court. Declarant needs to be
confronted.

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HEARSAY EXCEPTIONS

 We decide first: is it hearsay

o If it is hearsay, does it fall within one of these exceptions?
 The Hearsay Rule has been likened to Swiss cheese because it has so many
exceptions or holes in it
o General rule that says hearsay is not admissible (cheese) (Rule 802)
o Rule 801(d)(1), (2), Rule 803, Rule 804, Rule 806, and Rule 807 are the
holes
 Rule 802: Hearsay is not admissible, unless any of the following apply
o A federal statute;
o These rules; or
o Other rules prescribed by the Supreme Court
 Exceptions to Hearsay
o Rule 801(d)(1) A Declarant-Witness’s Prior Statement
o Rule 801(d)(2)(a)–(d) An Opposing Party’s Statement
o Rule 803(1)–(8) Exceptions to the Rule Against Hearsay Regardless
Whether the Declarant is Available as a Witness
o Rule 804(a), (b)(1)–(4) Exceptions to the Rule Against Hearsay When the
Declarant is Unavailable
o Rule 807 Residual Exception

F.R.E. 801 EXCEPTIONS

Overview
 Rule 801(d) statements are offered for their truth and fit the common-law
definition of hearsay. They are not hearsay, however, and function as exceptions
to the Hearsay rule.
 801(d) exclusions can be split into two categories:
o (1) Prior statements of witnesses (801(d)(1))
 Prior statements that are inconsistent with the witness’s present
testimony
 Prior statements that are consistent with that testimony
o (2) Admissions by opposing parties (801(d)(2))

1. PRIOR STATEMENTS BY WITNESSES

F.R.E. § 801(d) Statements that are not Hearsay.

A statement that meets the following conditions is not hearsay:
(1)A Declarant Witness’s Prior Statement. The declarant testifies and is
subject to cross-examination about a prior statement, and the statement:
a. Is inconsistent with the declarant’s testimony and was given under
penalty of perjury at a trial, hearing, or other proceeding or in a
deposition;
b. Is consistent with the declarant’s testimony and is offered:
i. 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
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ii. To rehabilitate the declarant’s credibility as a witness when
attached on another ground; or
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Three Limited Exceptions

 (A) Prior inconsistent statements
o Example: Witness testifies at deposition that the car that struck plaintiff’s
car was green, but then says at trial that the car was red, the earlier
statement is admissible for the truth
 (B) Consistent with what Declarant is saying on stand now
o Example: Victim of a crime views a lineup and identifies one of the
participants as a perpetrator. That individual is charged. At the trial, the
victim makes the same identification. The consistency of the identification
tells the fact finder something significant about the witness’s credibility
 (C) Identifies person as someone the declarant perceived earlier
 Example: California Evidence Code - “Evidence of a statement made by a
witness is not made admissible by the hearsay rule if the statement is
inconsistent with his testimony at the hearing and is offered in compliance”
o Main Point: California E.C. § 1235 is not as limiting as the Federal Rules of
Evidence
o Inconsistent statements can be offered for impeachment and for substantive
evidence of the truth of the matter asserted therein with no requirement of
perjury and oath

Rationale & Overview

 Rationale: The rationale for allowing prior inconsistent statements is turn coat
witnesses. By the time of trial, they are terrified or have been bribed and won’t
tell the story from the stand
 Impeachment Evidence: Under the Common Law, see Albert v. McKay prior
statements of a declarant-witness can only be used to impeach, and thus the
jury must be instructed by the judge pursuant to Rule 105 not to consider the
evidence for the truth of the matter asserted therein
o A prior inconsistent statement is one of the most common ways of
impeachment
 Substantive Evidence: Under the Federal Rules, hearsay admitted under Rule
801(d)(1) may not only be used to impeach a witness, but also may be used to
prove the truth of the matter asserted. However this usage is limited because
the prior inconsistent statements can only be considered for such a purpose
when given under the risk of perjury or under oath. For impeachment use, see
Rule 806

Analysis
Foundation necessary to offer the statement for the truth:
 (1) Declarant must be called as a witness at trial, testify and be cross-examined
 (2) Witness must be asked about prior statement during cross
 (3) Prior statement must in fact be inconsistent with the current testimony
 Prior statement must have been given under penalty of perjury*
o * if you are offering the statement only for impeachment, then the
statement need not be under oath. If you are offering it for the truth, then
it needs to meet 801(a)(1)(A)
o You know you’ll be under 801(d)(1)(A) if statement was made in a
deposition, hearing or trial, as opposed to out of court (803, 804)

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Rule: Highlights difference between using statements to impeach and being able to
use their prior statements for the truth, in furtherance of your case
Albert v. McKay (Cal. 1917)
 Facts: Albert injured on machine at work. Plaintiff’s theory is that machinery
was negligently started. Defendant’s theory is that machinery was already
running. Plaintiff dies, widow brings suit to recover damages.
 Statement: Witness was impeached by proof of prior inconsistent statement;
witness Elener initially said machine that injured Albert was running, but later
on cross—defendant sought to impeach him with rebuttal witness who testified
that Elener had said machine was off
 Holding: Hearsay. Reversible error, because the prior statement was not
allowed in for the purpose of impeachment, but rather for the truth of the matter
asserted.
 Reasoning: If decided under FRI  still hearsay, because the prior inconsistent
statement was not given under penalty of perjury and does not satisfy 801(d)(1)
(A)
o Common law  prior inconsistent statements only allowed to impeach
o FRE  can impeach and for truth of the matter asserted

Identification: F.R.E. 801(d)(1)(C)

 At a minimum, it applies to identification from photo array or lineup
 Why would out of court identification be preferable?
o Policy reasons: (C) is the stranger upon stranger assault situation; more
reliable out of court, closer in time to the crime, so we think the out of
court identifications will be more reliable
o Other scenarios where this rule could be argued that it applies
o If declarant were not available for identification—would this raise
confrontation clause issues? Yes, because it would be testimonial

Analysis
 (1) Declarant testifies; and
 (2) Is subject to cross examination
 (3) Prior statement is one of identification of a person made after perceiving the
person

Rule: If the declarant-witness doesn’t remember a prior identification, the defense

cannot claim lack of an opportunity to cross-examine to defeat introduction under
801(d)(1)(c)
U.S. Owens (U.S. 1988)
 Facts: Prison counselor attached from behind with a pipe to the head. FBI
interviewed victim in the hospital who identified the defendant as his attacker.
Victim suffered brain injury and could not remember seeing his assailant at trial.
 Defendant argues: Foster should not have been able to enter into evidence
prior statements about the May 5th Identification because Foster was not subject
to cross-examination about the prior statement at the current proceeding, as
required by Rule 801(d)(1)
 Holding: Foster’s identification is admissible under Rule 801(d)(1)(C)
 Reasoning: Owens had an opportunity to cross Foster sufficient to meet the
requirements of Rule 801(d)(1). Even if the declarant-witness doesn’t remember

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that much about the circumstances, the defense cannot claim lack of an
opportunity to cross-examine to defeat introduction. People’s memory fade, so
out-of-court identifications that took place closer in time to the crime preferred

Problems
 3.22 – How would Albert v. McKay have been decided today under FRE? Can be
used to impeach if inconsistent
o Answer: Is it also admissible for the truth of what is asserted? NO. It has
to have been given at penalty of perjury under trial. That requirement is
not met here. Elener’s statement was made casually
o FRE: Case should have come out the same way under FRE
o CA: Different result. Would allow it in and it wouldn’t be hearsay; would be
admissible for the truth and to impeach
 3.23 – In an assault prosecution, the victim testifies and identifies the defendant
from the witness stand as her assailant. The prosecution then seeks to have the
victim testify that she earlier picked the defendant out of a lineup. Is the victim’s
testimony about the earlier identification barred by the hearsay rule? By the
Confrontation Clause?
o Answer: NO hearsay problem because this falls squarely within 801(d)(1)
(c)—statement identifying a person as someone perceived earlier
o Won’t be barred by hearsay or confrontation clause
 3.24 – Following a bank robbery, a customer picks a suspect out of a lineup and
identifies him as the robber. The customer does not testify at trial, but the
government seeks to have a police officer who was present at the lineup testify
about the identification. Is the testimony barred by the hearsay rule? By the
confrontation clause?
o Answer: There is a Rule 801(d)(1) problem
 The Declarant is not made available for cross-examination
o There is a Confrontation Clause problem
 This is testimonial; and
 No opportunity to cross
 Important to get both analyzed because violation of one may be
harmless, but violation of both is not
 3.25 – Suppose the customer does testify at trial, but no longer recognizes the
defendant: When asked whether the robber is present in court, the customer
says he is unsure. May a police officer who was present at the lineup testify that
the customer identified the defendant as the robber?
o Threshold part of 801(d)(1) is satisfied if customer testifies at trial
o Identification can come from police officer as long as declarant can be
cross examined
o You could have prior ID come in through person who made it or through
someone else who was present
o 80(d)1 satisfied because available for confrontation, confrontation clause
also satisfied
 3.26 – In 2003, prosecutors associated with the ICTY were investigating
allegations ultimately substantiated, that members of the Kosovo Liberation
Army had tortured and murdered civilians at a prison camp in the village of
Llapushnik. In formal, videotaped interviews, two former members of the KLA
said that Fatmir Limaj, another KLA member, had commanded soldiers at the

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camp. When Limaj was prosecuted at the ICTY in 2005, the witnesses recanted,
and the prosecutors moved to introduce the video-taped interviews both for
impeachment and as substantive evidence of Limaj’s role as commander. The
three judge panel granted the motion, relying on an ICTY rule that gave trial
judges discretion to admit hearsay that was relevant and had sufficient indicia of
reliability. Months later, though the same judges acquitted Limaj, finding
insufficient evidence that he exercised authority over the soldiers who carried
out the tortures and murders. In their written ruling, the judges noted that they
were not persuaded that the prior inconsistent statements of these two witnesses
can safely be relied upon as the sole or principal basis for proof of a material
fact, especially because each witness, in oral evidence, disavowed, in very
material respects, what previously had been stated in the interview. Would this
evidence be handled differently under the Federal Rules of Evidence? How
should it be handled? Would videotapes have been admissible under FRE? Let’s
assume they were not made under oath
o Would be hearsay
o Inadmissible as far as offering for truth because wasn’t under oath
o Could be used to impeach to extent they say something that is good for
defense they can be impeached by showing they said something different
o Turncoat witness and yet what they said before can’t be used actually to
prove the case
o Prosecutors will often put a witness early on in grand jury so it is
memorialized under oath it’s available to be used for the truth because it
was under oath

2. ADMISSIONS BY OPPOSING PARTIES

Overview
 We’re not looking for indicia of reliability in this exception. It’s about adversarial
fairness; if you said something out of court, it’s fair to offer it against you; you
will know whether you said it or not; able to consult with attorney about how to
attack
o Adversary theory of litigation (Edmund Morgan); “A party can hardly object
that he had no opportunity to cross examine himself…”
o You can’t offer YOUR OWN prior statement or your agent’s prior state
o Party AGAINST YOU can offer
 Rationale: These statements are often highly probative, reliable, and fair game
for an opponent to use.
 Broadly about relationship to confrontation clause? No, a defendant cannot
claim he has no chance to confront himself; no right to confront yourself

F.R.E. § 801(d) Statements that are not Hearsay.

(2) An Opposing Party’s Statement. The statement is offered against an
opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement
on the subject;
(D) was made by the party’s agent or employee on a matter within the
scope of that relationship and while38it existed
(E) was made by the party’s co-conspirator during an in furtherance of the
conspiracy
 EVIDENCE OUTLINE—PROFESSOR ROTH—MGG

Direct Admissions
Rule: Personal knowledge is not required in the case of an admission
Salvitti v. Throppe (Pa. 1942)
 Facts: Salvitti (plaintiff) and wife injured in car accident; they say they swerved
to avoid negligently driven truck; they sue Throppe, driver’s employer. Defendant
visit plaintiffs. Admit accident was their fault and promised “everything would be
taken care of”
 Defendant argues employer concedes that acknowledgement by a party this it
was their fault is admissible as a declaration against interest, but the testimony
should have been rejected because employer was not present at time of accident
and only based his remark on what Throppe told him
 Holding: Personal knowledge is not required in the case of an admission
 Reasoning: A party may make an admission without regard to personal
knowledge. If he had said, “my driver tells me it was his fault” but by asserting
as fact “it was my fault” he essentially adopts it as true

Rule: Doesn’t need to be smoking gun evidence. An “inculpatory” requirement for

Rule 801(d)(2) would make the Rule too limited. The Government should be able to
attack the declarant’s credibility even if it doesn’t bear directly upon guilt
U.S. v. McGee (7th Cir. 1999)
 Facts: Defendant on trial for bank robbery. Detective testified that defendant
gave him three different versions of a story.
 Holding: Here, the statements can come in because they are McGee’s own
statements and being offered by opposing side. The statement need not amount
to an admission of a crime.
 Roth: Showing false and inconsistent statements goes to the truth/credibility of
the witness which is always relevant.

Rule: Under, F.R.E. 801(d)(2) the statement of a party may be introduced as an

admission only when offered against that party, it may not be offered in his favor.
U.S. v. Phelps (E.D. Ky. 1983)
 Facts: Defendants prosecuted for possession of ~150 pounds of pot and pound of
cocaine; when officers discovered the cocaine in gym bag, Phelps said: “that is
my gym bag, but Taylor put it in the trunk.” Taylor was co-defendant. Phelps
seeks to introduce the statement. Co-defendant Taylor seeks to suppress it
 Holding: Phelps statement is inadmissible as hearsay and does not fall under the
801(d)(2) exemption. It’s not being offered against opposing part.
 But see Rule of Completeness

Hearsay within Hearsay: F.R.E 805

 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
 Hearsay Within Hearsay: If you are not adopting it, but repeating what
someone told you
o Out of court statement by defendant, which is recounting what someone
else told defendant
o For ALL to be admissible, that has to fall within another hearsay exception
o FRE 805 – each part must conform with exceptions

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 If it references another out of court statement

X: Accident was my fault (inner circle)

Y: X told me that accident was his fault (middle)
Z: Y told me that X told him that accident was his X’s fault (outer)
Z’s statement being offered in part to what X told Y
What X told Y is being offered for truth
Z

Rule: Hearsay within an admission is admissible against the party who made the
admission if it suggests the person had adopted the hearsay
Reed v. McCord (N.Y. 1899)
 Facts: Defendant said: “dog of machine was out of position.” He had no personal
knowledge, but had made an admission about what he was told, adopting the
statement.
 Holding: The statements are admissible
 Reasoning: Plain admissions of facts and circumstances which are relevant to
the injury are admissible; the defendant did not say he “heard” that the accident
occurred this way (which would have been inadmissible), but rather said “this is
how the accident occurred)
o If he said he heard the accident happened like X  inadmissible. Hearing
how an accident happened and repeating it, not adopting it
o BUT, he asserted a plain admission of facts/circumstances  Admissible as
adoption

Foster v. Commissioner of IRS

 “A said that x is a fact.”  inadmissible hearsay within an admission
 “X is a fact”  admissible even without personal knowledge

Rule of Completeness
 Whatever hearsay is admitted, if it is done unfairly in a way that distorts the
meaning, then a party can appeal to FRE 106, if out of court statement in a
writing (and was just oral) then there is a common law rule of evidence
 It’s not an open door to anything the party said
o If government offers part of a wire tap conversation, government
chooses one recording from 30 days; turns out there is a recording from a
different day in the month—defendant can’t say under FRE 106, I am
going to offer my own statement on the recording; must relate to original
piece that government used in order to fall under 106

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F.R.E. § 106 Remainder of or Related Writings or Recorded Statements.

If a party introduces all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any other part — or any other
writing or recorded statement — that in fairness ought to be considered at the
same time.

Rule: Rule of Completeness when one party had made use of a portion of a
document, such that misunderstanding or distortion can be averted only through
presentation of another portion, the material required for completeness is ipso facto
relevant and therefore admissible under F.R.E. 401 and 402.
When a party introduces something into evidence, the adverse party is permitted to
introduce any other part of writing or recorded statement which will complete the
“understanding of the total tenor and effect of the utterance.”
Beech Aircraft v. Rainey (U.S. 1988)
 Facts: Navy pilots die in crash and surviving spouses sue the manufacturer.
Rainey had handwritten letter that explained that there was likely malfunction
with aircraft. Defendant wants to bring out statements that suggest it was pilot
error.
 Holding: District Court erred in refusing to permit Rainey to present a more
complete picture of what was stated in the letter he wrote
 Reasoning: The letter, read in its entirety, paints the entire picture of what
Rainey wrote to Morgan. Supreme Court said this was an abuse of discretion; it
was necessary that jury hear the portions of the letter they didn’t hear in order to
provide context for the statements brought in against Rainey. If jury only hear
statements defense brought in, what impression was the jury left with? Got the
impression that he had a previously different theory, whereas if they hear in
context, they will see he considered multiple theories
o If Beech offers Rainey’s letter in its entirety, they can do that under 801(d)(2)
(A), but under 106 we let in the rest of the letter under fairness principles
 Why were statements good for the defense? In the letter, he talked about his
wife wanting to cancel the flight; the statements were good for the defense
because the plaintiff’s theory was that the crash was cause by defective engine
o Defense wanted to offer statements that would show the crash was not due to
a defect, but was rather pilot error (this is why she would have wanted to
cancel flight)
o Bringing out statements for the truth would be useful for defense
o Are those statements admissible against him? Yes, because they are offered
against him and he made the statements
 After defense brings out those parts of the letter, what does Rainey want to bring
in? Statements in the letter that showed it was a defect
 Limiting Instruction: Footnote 18 – Supreme Court is saying that when those
statements were admitted, a limiting instruction would be appropriate
o Can the jury take it for the truth of the matter asserted?
o The part that Beech aircraft wants to offer – they come in for the truth
against Rainey because they are his prior statements!

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o When Rainey offers his own statements, FRE 106 does not allow them to
come in for the truth
o Rainey’s statements come in under fairness principle

Problems
 3.27 – Owners of all rights to the animated character “Seymour the Super
Spaniel” bring a TM infringement suit against the manufacturer of a “plush toy”
that looks similar to Seymour. To prove that children are likely to confuse the
defendant’s toy with Seymour, the plaintiffs seek to prove that the defendant has
made the following statements to wholesale purchasers: Which if any of these
statements are barred by the hearsay rule?
o A) kids can’t tell this thing apart from Seymour.” Statement against
party opponent - 801(d)(2) admissible
o B) “I showed the dog to my 6-year-old niece, and she said, ‘Oh it’s
Seymour!’” Only hearsay within hearsay is when defendant goes on to say
“oh, it’s Seymour”
o If being offered for fact that it is Seymour, then we have problem
o It’s not being offered to prove that it was actually Seymour
o Trademark suit is about confusion, we are offering to show that niece
was confused
o Like Barney (Lyons)
o c) “My bookkeeper tells me we run out of inventory every time a new
Seymour movie comes out.” Witness is recounting what defendant said
o Being offered against defendant
o There seems to be an internal statement, middle layer about what
bookkeeper said
o Every time a new Seymour movie comes out
o For the truth it seems relevant to proving confusion
o Hearsay within hearsay, but there is exception 801(d)(2)(d)—if we
want to rely on it for truth that it was selling
o Non-hearsay use – truth of knowledge that there was likelihood of
confusion; whether it was true or not that animals kept selling out –
fact that she said it to him, shows he had knowledge that there might
be issue of confusion
 3.28 – In a murder prosecution, a police officer testifies for the government that,
when arrested the defendant said: “I did it, I shot him.” On Cross examination of
officer, defense seeks to elicit that, immediately after making those statements,
the defendant said, “It was self-defense. He tried to kill me.” The government
objects on grounds of hearsay. How should the judge rule?
o Admissible because it’s a statement of an opposing party
o Does defendant now get to elicit more of the statement
o But under 106, it must be written or recording
o This is oral testimony
o What about under common law rule of completeness? Yes, not fair under
circumstances to allow in I did it I shot him but not that it was in self defense,
so in fairness we would likely allow it in under common law

Adoptive Admissions

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Test: Would a reasonable person, under the circumstances in which the party heard
the statement, have felt compelled to respond or correct the erroneous statement?

Adoption by Silence
 F.R.E. 801(d)(2)(B) – A statement, not directly made, but deemed to have been
adopted by party
 Expands scope of statements that can be offered against you by your adversary
 If the driver in Salvitti had said “It’s my fault.” And employer said “Yes, that’s
true.” When we have an explicit adoption, it’s clear how the rule works.
 Harder questions that arise under 801(d)(2)(b) are when silence is construed as
adoption.

Rule: 801(d)(2)(B) allows the introduction of so-called adoptive admissions,

including admissions by silence or acquiescence. When a statement is made in the
accused’s presence and hearing such a statement is not denied, objected to, or
contradicted, both the statement and the fact of his failure to deny are admissible in
a criminal prosecution against him
U.S. v. Fortes (5th Cir. 1980)
 Facts: Fortes and Jemison on trial for bank robbery. Ward testifies about
conversation he had with two of them, in which Fortes recounted details of the
robbery including Jemison’s participation. Jemison says nothing.
 Holding: The Court held that the statements were properly admitted
 Reasoning: Jemison’s silence gives consent, the court says
 Counter: Even if she was in the room, can you think of reasons she might not
protest?
o Maybe she was scared of Fortes
o Nervous about retaliatory action from Fortes
o You could imagine other facts that would provide a reasonable foundation for
someone not to object, even though they heard it and believed it not to be
true

Rule: A party’s failure to respond to a letter does not indicate an adoption, unless it
is reasonable under the circumstances, and therefore does not meet the
requirements of 801(d)(2)(B)
Southern Stone v. Singer (5th Cir. 1982)
 Facts: Southern Stone was never paid for some rock it sold to S&M; Southern
Stone’s counsel wrote a letter to Moore. SS argues the letter is admissible under
801(d)(2)(B) because Moore manifested his adoption or belief in the truth by not
responding
 Holding: letter inadmissible for the prejudicial effect of the erroneous admission
 Reasoning: Failure to respond to a letter does not indicate an adoption unless it
is reasonable under the circumstances

Authorized Admissions
 Analysis: was made by a person whom the party authorized to make a statement
on the subject. Think of (c) as a subcategory of (D)
 F.R.E. 801(d)(2)(C)
 Who is the kind of person that would be authorized to make a statement?
o Spokesperson! Most likely talking about Spokesperson

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o Lawyers – authorized representative

Rule: Rule 801(d)(2)(C) has been applied to allow evidence in statements made
by attorneys in representation capacity; attorneys have authority to make
admissions which are directly related to the management of their litigation.
Hanson v. Waller (11th Cir. 1989)
 Facts: Plaintiffs brought action on behalf of Spina who sustained injuries after
being struck by a truck by Waller; plaintiffs content it was an error to allow
defendants to put into evidence a letter from plaintiff’s attorney to defendant’s
attorney regarding photos of the accident
 Holding: Letter is admissible under 801(d)(2)(C)

Problems
 3.29 – Dryden is prosecuted for sexually abusing his stepdaughter when she was
10 years old. The prosecution wishes to prove that when the girl’s mother
confronted Dryden with the allegations and asked whether they were true,
Dryden replied, “I don’t remember doing that, but I can’t swear that I haven’t
blocked it out.” Is this interchange admissible against him at trial? 801(d)(2)
(B); what comes in against him as an admission? Whole statement and what was
said to him, because that’s what he was allegedly adopting. Can argue that he
adopted what was said to him as true
o Would a reasonable person who did not believe it to be true have said more?
o Roth says outcome isn’t clear—can definitely make argument that he was
adopting it (why didn’t he just say no, I didn’t do that) or that it wasn’t an
adoption (he is saying I don’t remember)
o What he says can be admitted against him under 801(d)(2)(A)—where we
get to (B) is trying to bring in more, to be able to argue that he adopted this;
Roth thinks pros would be reaching here
 3.30 – Plaintiffs in products liability lawsuit against a bicycle manufacturer, see
to introduce evidence that a spokesperson for the company admitted that “the
design of that particular bike was proven to be defective.” The company claims
that it fired the spokesperson hours before she made that statement; the
plaintiffs claim the spokesperson was dismissed shortly after making the
statement. Judge is unsure how to rule. Should the jury be permitted to hear the
spokesperson’s statement?
o Factual question as to whether they were dismissed before or after making
the statement
o All comes down to when person was fired
o Judge concludes that it is more likely than not, preponderance suggests, that
company fired spokesperson before she made the statement
o If the court finds, by a preponderance, that she was fired before she made
the statement it’s inadmissible. Court in Bourjaily said preliminary
questions about Bourjaily have to be decided by trial court applying 104a
preponderance standard, not conditional relevance questions

Agent and Employee Admissions

 Test: Was the admission made by the agent acting in the scope of his
employment?

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 Not authorized to be spokespeople, but they make a statement that is on a

matter that is within the scope of employment
 Questions to ask:
o Who made the statement?
o Was it their job?
o Did statement pertain to scope of employment?
o Were they still employed at time they made the statement?

Rule: When an employee makes a statement—including written—about a matter

pertaining to the scope of employment, it can be used against the employee’s
company/defendant corporation under F.R.E. 801(d)(2)(D)
Mahlandt v. Wild Canid Survival & Research Center, Inc.
 Facts: Director of center was keeping wolf at his house. Wolf allegedly attacked
child. Director, Ken, left note on President’s desk: “call me, Sophie bit a child.”
 The Three Statements
o 1) Note: Poos’ note, taped to the door of the President of Defendant
corporation, saying ‘Sophie bit a child – call me.”
o 2) Oral statement that “Sophie bit a child”
o 3) Board Minutes: from a meeting of the directors of Defendant Corp
recounting discussion of what they are going to do about Sophie biting a
child
 Issue: Whether the note should had been admitted at trial? Whether note falls
under 801(d)(2)(D) hearsay exception “made by party’s agent”?
 Holding: The two statements made by Mr. Poos were admissible against
defendant corporation
 Reasoning: Mr. Poos had physical custody of Sophie, his conclusions, opinions,
were obviously accepted as a basis for action by principal
 Mr. Poos’ two statements:
o Admissible against him? Yes, his own statements are admissible as direct
admission under Rule 801(d)(2)(A)
o Are they admissible against the company? Yes.
o Does someone need to have personal knowledge for something to be
admissible under 801(d)(2)(D)? No. If it is asserted as fact even under
(A) then there is no problem of personal knowledge; if it is adopted as
fact, here…
o Here we have internally facing statements of Poos to Directors in the
corp
o Does the statement have to be to someone outside the company? No, it
can be internally facing, p. 117
 Minutes of Board of Directors
o Not admissible against Poos—because he didn’t attend meeting, he didn’t
make the statements; his statements admissible against company
o But the company’s statements are not admissible against him
o Apply 403 balancing test, we don’t need to admit Board’s statements
o Would have been admissible against company under 801(d)(2)(C)—treating
the board as people who are authorized spokespeople but they don’t dwell
because they ultimately say the probative value of board’s statements are not
that high and not that helpful once Poos statements admitted in

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o Roth thinks (D) would have made more sense

Rule: tk
Sea-Land Service v. Lozen (9th Cir. 2002)
 Facts: Email from S-L employee 1 sent to employee 2, who sent to opposing
party with the preface “Yikes, please note the rail screwed us up.”
 Defendant argues that district court improperly excluded Exhibit 4, an internal
company e-mail authored by Sea Land employee forwarded to Lozen by a second
Sea Land employee
o Lozen argues that the e-mail is admissible and is not hearsay because it is an
admission by a party opponent
 Holding: Not hearsay: written in employee 1’s capacity as SeaLand employee,
adopted and written in employee 2’s capacity as SeaLand employee
 Reasoning: Laurie is adopting contents of previous email under 801(d)(2)(B)
(she did adopt the prior email) but it’s being offered against her employer, so is it
admissible under 801(d)(2)(D)

Problems
 3.31 – A delivery company fires a driver after his truck collides with a
motorcycle. The driver then telephones the motorcyclist and admits that he was
speeding. The motorcyclist sues the driver and the delivery company for
negligence, proceeding against the delivery company on a theory of respondeat
superior. Is the driver’s statement admissible against the driver? Against the
Company?
o Is the driver’s statement admissible against him? Yes, under 801(d)(2)(A)
o The driver was fired, so if he was fired it’s not admissible against company;
company managed to fire him before he made statement
o Still admissible against him as his own statement
 3.32 – A newspaper reports that the “old time marinade” advertised by a fast
food chain is mayonnaise and food coloring. The chain sues for libel. The
newspaper seeks to have its reporter testify that she was told the ingredients by
the chain’s Vice President for Menus and Recipes. Is the testimony admissible to
prove lack of malice? To prove the actual ingredients?
o Admissible to prove the actual ingredients under Rule 801(d)(2)(D),
much like Poos
 VP is an employee or agent
 VP made statements at the time of employment
 Statement concerns a subject matter within the scope of VP’s
employment
o Inadmissible to prove lack of malice
 There is no admission as to malice here
 3.33 – During a circus performance, a lion escapes and mauls a spectator to
death. Hours later, the lion tamer tells his supervisor that the latch on the lion’s
cage was rusty and weak. The circus company, Amazing Inc. is prosecuted in
state court for criminally negligent homicide. The state code of evidence is
substantially identical to the Federal Rules of Evidence. Assume the lion tamer
does not testify at trial. Would the hearsay rule or the Confrontation Clause bar
the introduction of his statement against Amazing Inc?

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o Under 801(d)(2)(D): his job is lion tamer, so inspecting the cage is within
reasonable scope of his employment; seems like another agent or employee
statement
o Confrontation Clause:
 Post-Crawford, we ask was the statement testimonial?
 He did not make the statement in custody
 Made it hours after mauling happened, to supervisor
 Probably not testimonial
 We have a corporate defendant here; SCOTUS hasn’t decided
whether corporate defendants have the same rights as individuals
under Confrontation Clause
 Roth thinks corp defendants probably have this right

Co-Conspirator Admissions
 801(d)(2)(E)
 Rationale: adversarial fairness
 Admitting Statements under 801(d)(2)(E)
o (1) Is the statement made:
 (a) By co-conspirator of party against whom statement is offered
 (b) In furtherance of conspiracy
 (c) During existence of conspiracy
o (2) Bourjaily
 No independent evidence necessary in making preliminary factual
determination
 Bootstrapping permitted
o (3) Bruton issue?
 Does D1’s statement implicate D2 or D3?
 Government’s options post-Bruton: forgo evidence, separate trial,
Bruton-ize statement
o (4) Gray v. Maryland

Rule: A court, in making preliminary factual determination under Rule 801(d)(2)(E)

may examine the hearsay statements sought to be admitted. You do not need
independent evidence.
Bourjaily v. U.S. (U.S. 1987)
 Facts: Greathouse, informant for FBI, arranged to sell kilogram of cocaine to
Lonardo. Lonardo’s “friend” (petitioner) wanted some information on the
cocaine. Telephone conversations recorded. Greathouse, informant, and Lonardo
agree to make transfer. After Lonardo transferred cocaine to “friend’s” car,
Lonardo and friend arrested. Government introduced statements regarding
participation of the “friend.” Government is trying to offer telephone statements
Leonardo made (co-conspirator of party) regarding participation of friend, and
bring statements against the friend.
 Elements that need to be established to bring statement within 801(d)(2)(E)
exception:
o Statement made my co-conspirator of party against whom statement is
offered
o In furtherance of conspiracy
o During existence of conspiracy

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 District Court: Lonardo’s statements on the phone were made in furtherance of

conspiracy; Lonardo’s out of court statements satisfied Rule 801(d)(2)(E) and
were not hearsay
 Government argues: statements made over the phone were in furtherance of
the conspiracy
 Defendant argues: Court should not consider hearsay statements at all in
determining preliminary facts under Rule 801(d)(2)(E); court should look only to
independent evidence, that is statements other than the statements sought to
be admitted
 Three Questions SCOTUS is answering: 1) Whether the Court must
determine by independent evidence that the conspiracy existed and that the
defendant and declarant were members of this conspiracy, 2) The quantum of
proof on which such determinations must be based, 3) Whether a court must in
each case examine the circumstances of such a statement to determine its
reliability
 Holding: A court, in making preliminary factual determination under Rule
801(d)(2)(E) may examine the hearsay statements sought to be admitted. You do
not need independent evidence.
 Bourjaily settled:
o 1) Standard of proof required for 104(a) determinations
o Preponderance of evidence standard
o 2) Must that burden be met solely using independent evidence?
o Bootstrapping – idea is you are going to satisfy elements necessary to
admit statement by using the statement
o I.e. bootstrapping permitted?
o Bootstrapping is permitted: Text of 104(a) says court can consider
anything, so clear text of rule abrogates approach of using anything
o 3) Is independent evidence required?
o i.e. is the statement itself enough to satisfy the requirements of the
exception?
o Court can consider statement itself, i.e. bootstrapping, but is it
enough?
o Court does not answer question
o Court says here, there was ample evidence presented
 Reasoning: In order for a Court to admit a statement under Rule 801(d)(2)(E),
there must first be evidence that there was a conspiracy
o We get to the exclusionary rule because the government wanted to offer the
friend’s statements for the truth—it’s part of the wall
o FRE 104 – says that preliminary questions of fact must be resolved by the
Court
o Preponderance of the evidence standard – traditionally, preliminary fact
questions have been determined by a preponderance of the evidence;
ensures that the Court will have found it more likely than not that the
technical issues and policy concerns addresses by the FRE have been
afforded due consideration

Problem
 3.34 – Following his arrest, a bank robber waives his Miranda rights and tells
the police that an employee of the bank disabled the security cameras for him. Is

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this statement admissible against the employee in a prosecution for aiding and
abetting bank robbery, or in a civil suit brought against the employee by the
bank?
 Answer: does not fall under co-conspirator exception. If it were offered in
criminal, would be blocked by hearsay and confrontation
 Co conspirator Admissions
o 1) Statement made by co conspirator of party against whom statement is
offered
o 2) In furtherance of conspiracy
 Not in furtherance of
o 3) During existence of the conspiracy
 And maybe not during existence
 Hypo: Star Trek example, would it be admissible against co-defendant, Dr.
McCoy? Statement was: ‘I’ve never trusted Klingons.”
o Audio log admissible against Captain Kirk? 801(d)(2)(A) notwithstanding
that it’s an out-of-court statement being offered for the truth
o Is it relevant? Why does pros want to admit it? Establishes a motive,
because he’s never forgiven them for death of his son
 Admissible against co-defendant Dr. McCoy? No, it’s just kind of part of Kirk’s
diary; Roth says no exception that we’ve covered yet that would allow it to be
admitted for the truth against Dr. McCoy even though it would be relevant in
establishing motive
o If it were admitted in American Court room against Kirk, what should
judge do?
o Limiting instruction
o Tell the jury—you may only consider diary of when you are deciding guilt
of Captain Kirk
o Should not consider it at all when considering guilt of co-defendant

Admissions & the Bruton Rule

 When a co-conspirator / declarant is also a co-defendant and has made a
statement implicating the other defendant, then the statement must be
“Brutonized” to remove the portion that implicates the non-declarant
o Usually, this is solved by a limiting instruction (F.R.E. 105—limiting
evidence that is not admissible against other parties or for other purposes.
If the Court admits evidence that is admissible…)
o Bruton only applies to testimonial hearsay; it’s a confrontation clause issue
 Test: What kind of inferential leap is necessary?

Rule: When it comes to joint trials, admitting confession of one co-defendant, which
names the other co-defendant, is very likely to prejudice the defendant named—
despite jury instruction
Bruton v. U.S. (U.S. 1968)
 Facts: Bruton and Evans were tried together for robbing a jewelry store that also
operated as a U.S. Postal Service contract station. At trial, the judge admitted in
to evidence Evans’ confessions, made to the postal inspector and later to police.
In the confession, Evans names Bruton as his accomplice. The judge instructed

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the jury to consider the confession for Evans’ guilt or innocence, but to disregard
it as inadmissible hearsay for Bruton’s charges. The jury convicted both men.
 Defendant’s argument on appeal: Both petitioner and Evans appealed their
convictions to the Eighth Circuit. That court set aside Evans’ conviction on the
ground that his oral confessions to the postal inspector should not have been
received in evidence against him
 Circuit Court: Relying upon Delli Paoli, affirmed petitioner’s conviction because
the trial judge instructed the jury that although Evans’ confession was
competent evidence against Evans it was inadmissible hearsay against
petitioner and therefore had to be disregarded in determining petitioner's guilt
or innocence.
 Holding: Because of the substantial risk that the jury, despite instructions to the
contrary, looked to the incriminating extrajudicial statements in determining
petitioner’s guilt, admission of Evan’s confession in this joint trial violated
petitioner’s right of cross examination secured by the Confrontation Clause of
the Sixth Amendment
 Reasoning: There are contexts where risk that jury will not, or cannot, follow
instructions is so great that the practical and human limitations of the jury
system cannot be ignored
o Despite clear instructions to the jury, the Court “cannot accept limiting
instructions as an adequate substitute for petitioner’s constitutional right of
cross examination.”
o Court is saying they trust juries to follow limiting instructions generally, but
there are some situations where that is untenable
o “You can’t un-ring the bell”—once the jury has heard the confession naming
Bruton, there is no way they can realistically put it out of their mind
 Note: If Evans statement had not implicated anyone else, there is no problem
admitting it at a jint trial

Government’s Options Post-Bruton

 1) Not use the confession
o depends how strong your evidence is
 2) Motion for separate trials—introduce the confession only at the confessing
D’s trial
o Probably not smart
o Witnesses uncooperative, maybe will tell it twice
o Expensive
o Have to prove it twice
 3) Conduct a joint trial, but Bruton-ize the confession before offering it
against the confessing D and seek a limiting instruction.
o To comply with what SCOTUS said was required, to maximize chance of
jury being able to follow instruction
o Still will not be admissible against co-defendant
o Riskier move

Rule: Richardson places outside the scope of Burton’s rule those statements that
incriminate inferentially—and we must depend on the kind of inference
Richardson v. Marsh

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 Facts:  Marsh, Williams, and Martin were charged with the assault of Knighton
and the murder of her four-year-old son, Koran, and her aunt, Ollie Scott. Despite
Marsh’s objections, she and Williams were tried jointly. The prosecution entered
Williams’ confession into evidence, although the confession was redacted to
prevent any mention of anyone other than Williams and Martin being involved in
the crime. In his closing argument, the prosecution admonished the jury not to
use Williams’ confession against Marsh but linked her testimony to events in the
confession. The judge also instructed the jury not to use the confession against
Marsh. Marsh was convicted, the Michigan Court of Appeals affirmed, and the
Michigan Supreme Court denied the appeal.
 Holding: Court says no Bruton problem
 Reasoning: Court considered the inferential leap the jury would have to make.
Not only did the jury receive instructions not to consider the confession in
assessing Marsh’s guilt, but also the confession was redacted so that there was
no incriminating evidence regarding Marsh’s actions. Without the implication
that the evidence in the confession was incriminating, Marsh’s Confrontation
Clause rights were not violated. The Court also held that joint trials, while not
necessarily in either defendant’s best interests from the perspective of the
Confrontation Clause, are a necessary part of the justice system.
 Obvious Inference  not okay, i.e. name deleted out, nickname if clear that
nickname is other defendant, if statement is “me and someone else” and there is
only one person at the table…that ought to be okay under the case law…
 Inference takes a lot of work  that’s probably ok

Rule: When a trial includes multiple defendants, the prosecution may not “Bruton-
ize” statements by simply redacting a co-defendant’s name if the jury will still be
able to make the inferential step that co-defendant’s name was deleted/redacted
Gray v. Maryland (U.S. 1998)
 Gray considers the issue of how do you Bruton-ize in a way that won’t result in
reversal on appeal?
 Facts: Williams died after severe beating; Bell gave confession to police where
he said he (Bell), Gray, and Tank had participated in beating; Tank later died;
grand jury indicted Bell and Gray for murder; Maryland tried them jointly.
“Question: Who was in the group that beat Stacey? Answer: Me, deleted, deleted,
and a few other guys.”
 Issue: Whether redaction that replaces defendant’s name with obvious indication
of deletion, such as a blank space, the word “deleted,” or a similar symbol, still
falls within Burton’s protective rule?
 Holding: The Supreme Court held that Bruton rule prohibiting introduction
during joint trial of confession of non-testifying co-defendant, which names
defendant as perpetrator, extends also to redacted confessions in which name of
defendant is replaced by blank space, word “deleted,” or similar symbol.
 Reasoning: There are no inferential steps to make if the two defendants are in
the room! Court does not like the idea of calling attention to the redaction.
o Right after confession with deleted, deleted, pros asks: “After he gave you
that information, you were subsequently able to arrest Mr. Kevin Gray, is
that correct?” Court says this is not ok!
o The inferences here involve statements that, despite redaction, obviously
refer directly to someone

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o To replace the words “Sam Jones” with an obvious blank will not likely fool
anyone
o The deletion will call jurors attention to it
 Richardson – placed outside the scope of Burton’s rule those statements that
incriminate inferentially—and we must depend on the kind of inference
o Here, “the accusation that the redacted confession makes ‘is more vivid than
inferential incrimination, and hence more difficult to thrust out of the mind.’”
 Dissent (Scalia): The question is not whether the confession incriminated
petitioner, but whether the incrimination is so powerful that we must depart
from the normal presumption that the jury follows instructions. Scalia does not
think so. Jury is capable of following instructions.
o Risk to the system with offering statements that are changed, because it’s re-
writing what was said (“me and a few other guys” is not what was said); it’s
one thing to redact it’s another thing to change the nature of what was said!

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F.R.E. 803 EXCEPTIONS

Overview
 Hearsay Exceptions generally broken up into two categories
o Those that apply regardless of whether the declarant is available at trial
(803, 807)
o Those that apply only when declarant is unavailable at trial (904)
 Most hearsay exceptions rest on a combination of reliability and necessity
rationale—that is, we have reason to believe that the sort of out-of-court
statement encompassed by the exception brings with it some additional
assurances of reliability and/or we worry that if we do not create an exception
there will be no substitute for the evidence that we lose as a result of the rule
 Rule/Write-up: When an out-of-court statement is used for the truth of the
matter asserted, that statement is hearsay. However, not all hearsay statements
are inadmissible. If the hearsay statement fits a “not hearsay” exemption under
801(d) or an exception under 803, 804, or 807, then it may be admissible even
though it is not used for its truth.
 *Remember Confrontation Clause

SPONTANEOUS AND CONTEMPORANEOUS STATEMENTS:

PRESENT SENSE IMPRESSION & EXCITED UTTERANCES
Overview
 Rationale behind the exception: The close temporal proximity of (a) the event
and (b) the declarant’s personal perception and (c) the resulting statement lends
a sense of reliability to the out-of-court assertion we do not admit such evidence
then it may be extremely difficult for the fact finder to determine through other

F.R.E. § 803 Exceptions to the Rule Against Hearsay.

The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an
event or condition, made while or immediately after the declarant
perceived it.
(2) Excited Utterance. A statement relating to a startling event or
condition, made while the declarant was under the stress of excitement
means the truth about the incident in question

(1) Present Sense Impression. A statement describing or explaining an event or

condition, made while or immediately after the declarant perceived it.
 Timing: Statement made either in the moment, direct after, or at first
opportunity
 Justification: Substantial contemporaneity of event and statement negate the
likelihood of deliberate or conscious misrepresentation
 Content restriction: Must be a description or explanation of the event or
condition

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 104(a)—judge must determine, as a preliminary matter under 104(a), if the

statement was made at the time of the event or immediately afterward

Analysis: Present Sense Impression

 (1) Is the matter asserted in the statement being offered for the truth?
 (2) Does it describe or explain the event?
 (3) Was the statement made during or immediately after the event?
 (4) Did the declarant personally observe the event or condition?
 (5) Confrontation Clause issue?
o Criminal case?
o Statement being offered against defendant?
 (6) Need personal knowledge!
 (7) Can you argue both 803(1) and (2)? Obayabonga

Rule: In a hearsay situation, the declarant is a witness and neither the Excited
Utterances Rule (F.R.E. 803) or Rule 804 dispense with the requirement of firsthand
knowledge
Bemis v. Edwards (9th Cir. 1995)
 Facts: Bemis brought civil rights action against police officers and sought to
admit into evidence a 911 call made by Estep, in front of the house where Bemis
was arrested (in the call, Estep was telling 911 how police were beating
someone).
 Trial court did not admit evidence under 803(1) or 803(2). The Court found
the declarant lacked personal knowledge—he was inside the house and wasn’t
outside watching the beating. On the 911 call, you could hear people in the
background and it appears Estep is repeating this back to the 911 operator.
 Holding: District Court did not abuse its discretion in finding these 911 calls
inadmissible
 Reasoning: Plaintiff had burden of proving that Estep had firsthand knowledge
of the beating he was witnessing, including a showing of Estep’s proximity to the
scene
o But the District Court noted that Estep did not witness the events in
question but was rather relaying them to the 911 caller while someone was
telling him what was going on

(2) Excited Utterance. A statement relating to a startling event or condition, made

while the declarant was under the stress of excitement that it caused.
 Time Lapse: Standard of measurement is the duration of excitement
 Justification: Circumstances may produce a condition of excitement which
temporarily stills the capacity of reflection and produces utterances free of
conscious fabrication. The statements we spontaneously blurt out when we are
agitated have a special reliability to them.
 Content restriction: Need only “relate” to the startling event or condition;
thought to be broader than “describing or explaining”
 Criticism: Excitement impairs accuracy of observation
 104(a)—judge must determine, as a preliminary matter under 104(a), if the
statement was made under the stress or excitement caused by the event or
condition at the time the utterance was made

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Analysis: Excited Utterances

 (1) Was there an event or condition startling enough to render inoperative the
normal reflective process? Obayabonga; Elem
 (2) Was the statement a spontaneous reaction to the occurrence or event and not
the result of reflective thought? Obayabonga; Elem
 (3) Does the subject matter of the statement relate to the startling event?
 (4) Did the declarant have personal knowledge of the fact related in the
statement? Bemis
 (5) Confrontation Clause issue?
o Criminal case?
o Statement being offered against defendant?
 (6) Need personal knowledge!
 (7) Can you argue both 803(1) and (2)? Obayabonga

Rule: Sometimes both 803(1) and 803(2) will apply to a statement

 803(1): Look to the temporal aspect. Fifteen minutes can constitute
“immediately after” but it is a question of the circumstances of the case.
 803(2): Excited Utterance Exception: 803(2) requires 1) an occurrence or
event sufficiently startling to render inoperative the normal reflective thought
process of an observer and 2) the declarant’s statement must be a spontaneous
reaction to the occurrence
U.S. v. Obayagbona (EDNY 1985)
 Facts: Jury found Obayagbona (OB) guilty of conspiring to sell heroin to an
undercover FBI agent; during the purchase, Agent Turner was wearing tape
recorder which was still on during the arrest
 Government sought to introduce statement Turner made during the arrest: “The
girl in the black and white handed it to me out of her purse.”
 Defendant argues: Tape recording should not have been admitted. How could
this be “exciting” for an agent, an agent who knows he is collecting evidence?
 Holding: Agent’s statements are admissible under Rules 803(1) and 803(2)
 Reasoning: Court analyzes under 803(1) and 803(2).
o 803(1): Admissible as present sense impression. The question is how broadly
do we read “immediately after.” Judge reads delay of ~15 minutes
acceptable. Court finds that Turner spoke at his first opportunity; he had
repressed this information and it “exploded almost as a reflect as soon as
Agent Turner was free to speak.”
o 803(2): Admissible as excited utterance. The fact that the excited witness
was a law enforcement agent does not preclude admissibility under the
excited utterance exception
 Note: This cases is on the line of whether we should apply 803(1) or 803(2).

Hypo: iHop 911 Call

 On 911 call, caller says things to the effect of: Shooting going on. “he’s shooting
everybody.” Automatic weapon. Shooting people in parking lot, it’s an automatic
weapon. He’s shooting at us now. Parking lot
 Is it admissible under 803(1) and/or (2)? As a prosecutor, this is powerful
evidence for jury there. If admissible, what for? Narrative? The specifics: Red
shirt, Automatic weapon, One shooter

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 For the truth? Must fall within exception  803(1) or (2). Personal knowledge –
doesn’t mean to every last detail; admitted as his description. Not relying just on
tape, often you have other evidence – witnesses, way of identifying caller, that
can put caller at scene
 803(1): Both under (1) and (2) hearing the gun shots. Are we confident he is
watching this or relaying it?
 803(2): Caller sounds excited. Chaos. You can hear the gun shots. No concern
that this isn’t contemporaneous.
 Testimonial? If he testifies, we don’t worry. Is this testimonial under case law?
Probably not. It’s made during an ongoing emergency, we have shooter on the
lose. Shooter in the background, We want to analyze but pretty confident this will
come out as non testimonial

Rule: Must be evident that declarant was excited or agitated for statement to come
in under 803(2).
U.S. v. Elem (8th Cir. 1988)
 Facts: Elem was convicted for possession of firearm by convicted felon; when he
was taken into custody he was asked whether the gun was his, he answered “no.”
He was also asked about the flourishing of a weapon, and answered: “You won’t
be able to make that.” District Court excluded exculpatory statements made by
Elem after government’s pretrial motion, as inadmissible hearsay
 Defendant/appellant Elem argues that the statements are admissible under
F.R.E. 803(2)
 Holding: District Court ruling upheld. The Court finds nothing in record to
support defendant’s contention that he was unduly excited

Problems
 3.35 – United States v. Obayagbona, Bemis v. Edwards, and United States v.
Elem were all decided before the United States Supreme Court reinterpreted the
Confrontation Clause in Crawford. Would Crawford and its progeny change the
result in any of the three cases?
o Answer: if Agent turner had not testified and only tape recorded statement
admitted as present sense utterance; Obayagbona, there is no problem
because he did testify, but if he didn’t testify there is no question
o When is something that satisfied 803(1) and (2) nevertheless deemed
testimonial
o In all cases we read post-Crawford, Davis, Hammond  hearsay came in
pursuant to one of these exceptions
 Hammond – deemed excited utterance because she was under stress
from the altercation
 Bemis – NO CC issue because civil case
 Elem – defendant trying to offer his own statement
 3.36 – Pauline sues Devon for damages caused when their cars collided. Devon’s
wife, Wilma, who was a passenger in Devon’s car at the time of the accident.
Pauline seeks to testify that, immediately following the accident, Wilma told her
in a great state of agitation that Devon had “been sleeping terribly all week
long.” Does the rule prohibit this testimony?
o Answer: Inadmissible under Rule 803(1)

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 This is not a description of the event that occurred — she was talking
about him sleeping during the week, not about the crash
 The scope of Rule 803(1) is significantly more narrow than the Scope
of Rule 803(2)
 It must be about the description of the event
o Possibly Admissible under Rule 803(2)
 The scope of Rule 803(2) is broader, because instead of describing or
explaining being our language, the language is “relating to”
 If we find that Devon:
 Was sufficiently startled or excited, given the circumstances
 The statement was made within the duration of excitement
 Had personal knowledge; then these statements are arguably
related to the startling event and thus admissible
 3.37 – Dumbarton is charged with murdering Vasquez. The prosecution seeks to
have a witness testify that she spoke with Vasquez by telephone on the night he
died, and that he ended the conversation by saying, “Oh, there’s the door it must
be Dumbarton. Talk to you later.” The defendant objects on grounds of hearsay
and confrontation. How should the Judge rule?
o No CC issue because talking to friend; what about hearsay analysis – “oh,
there’s the door” if offered to prove that there is a knock at the door, does
it fit within 803(1) or (2)? Could be present sense impression because
o Harder part is “it must be Dumbarton” – not admissible prove it was
Dumbarton at door, unless he is saying I hear his voice
o Maybe as circumstantial that he was expecting Dumbarton

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STATE OF MIND
Overview
 The exception for present state of mind includes statements of present intent
to do a future act, offered to show circumstantial evidence that the defendant
did what she planned.
o When an out of court statement is used as circumstantial proof of the
declarant’s state of mind, the hearsay rule is not implicated
o “There is a difference ‘between a hearsay account of a past fact and
Walters’ personal expression of his then present intent…” (Brooks
MacCracken)
 The state of mind exception does not permit the witness to relate any of the
declarant’s statements as to why he held the particular state of mind or what he
might have believed that would have induced the state of mind
 Admissible: Declarations by the patient to bystanders or physicians are
evidence of sufferings or symptoms (Wigmore) (but are not received to prove the
acts)
o Declarations by the insured, in insurance policy case, that he intends to go
upon a journey with another may be evidence of state of mind (Hillmon)
o “I’m going to my boyfriend’s house,” demonstrates a plan and can be used
circumstantially to show the declarant actually went to her boyfriend’s
house
o “I’m going out with Harr,” offered against Harry to prove that the
Declarant, a murder victim, did go out with Harry, who is charged with
murder. Courts are split on use, but tend to admit as circumstantial
evidence regarding Henry’s whereabouts
 Inadmissible: Statements of past sufferings or symptoms (Wigmore, Cashin);
statements placing someone
o “I remember that it was Brandon who attacked me yesterday,”
inadmissible to prove Brandon’s stack under 803(3)
o “I believe that I saw Roger hanging out at the moot-court office,”
inadmissible to place Roger at the officer under 803(3)
 Analysis:
o (1) Start with text of the statement
o (2) Need to figure out what is the next inference
o (3) Is it to show something in the past? Probably won’t come in
o (4) Is it to show something in the future? More likely to come in (Hillmon)
 Justification: Rests of the premise that the declarant’s statement was made
close to the time the condition or state of mind was experienced, so the chances
of memory defects or risks of fabrication are diminished
 Star Trek Hypo Revisited: When we last looked at it, we didn’t have a basis for
admitting it. Is there a basis for admitting the out of court statement against
Captain Kirk but against Captain McCoy? “I’ve never trusted Klingons and I
never will. I’ve never been able to forgive for the death of my boy.”
o F.R.E. § 803(3) State of Mind: makes admissible for purpose of showing
what is in someone’s state of mind—as long as it’s relevant
o If it were offered to prove that the Klingons had killed Kirk’s son, it would
not be admissible for that purpose: 1) It can be used to prove he was
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harboring ill will, he believed essentially, 2) Limited purpose of showing

what was in his mind, 3) Although it’s a continuing state of mind – I do not
just Klingons; backward, forward, and present facing, 4) It’s a description
of his then existing state of mind, 5) Subject to limiting instruction that it
can’t be used to show…
o believed Steward brought an agent to him Now it can be used against
McCoy (co-defendant)
o Confrontation clause: If deemed testimonial it can’t come in. We would
then question whether voice testimony was testimonial? We said no, it’s
not because he was just keeping his own diary
o Analytically it’s a subset of present sense impression—rationale for
803(3) is the same as the same for the rationale for 803(1)—if you’re
saying something contemporaneously than it is likely to be more reliable;

F.R.E. § 803(3): Exceptions to the Rule Against Hearsay—Regardless of

Whether the Declarant is Available as a Witness
(3): Then-Existing mental, emotional, or physical condition. A statement
of the declarant’s then-existing state of mind (such as motive, intent or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or
bodily health), but not including a statement of memory or belief to prove the
fact remembered or believed unless it related to the validity of terms of the
declarant’s will.
lack of time to fabricate

Interaction between Non-Hearsay Uses of Evidence and 803(3)

 If it’s not offered for the truth, it’s not hearsay (i.e. “it’s Barney.” Lyons
Partnership)
o In that case, it wasn’t offered to prove that it was Barney. It was offered to
prove that the children thought it was Barney which was relevant because
it helped prove confusion
o It was offered as circumstantial evidence
 If it’s offered for the truth, but it establishes the speaker’s state of mind
contemporaneously, it may come in under 803(3)
o If children instead had said: “I think it’s Barney.”
o Now, it’s hearsay but it is admissible under 803(3)
o It’s a different way of getting in

Rule: I think/I thought. Statements offered under 803(3) do not come in for their
truth, but rather to prove a state of mind under 803.
U.S. v. Harris (2nd Cir. 1984)
 Facts: Defendant wants to offer his own out of court statements he made to his
parole officer that the government was after him and he was being set up.
o “The government and people were after him and trying to set him up
o “The government was trying to set him up”
o “Mr. Steward had brought an agent to him”
o “believed Steward brought an agent to him” (this would have been hearsay
under 801(c) since it’s evidentiary significance depended on truth of matter
asserted)

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 Holding: The district court erred and the testimony of Harris should have been
admitted under the state of mind hearsay exception 803(3)
 Two Lines of Analysis:
o 1) “The government and people were after him and trying to set him
up,” “the government was trying to set him up.” “Mr. Steward had brought
an agent to him.”
o Not hearsay: “Government is after me.” If it were offered to prove that
the government is after him, it would be hearsay.
o Defendant is not offering to prove the truth of the matter asserted, he
is offering it as circumstantial proof that he believed it was an agent
(like U.S. v. Parry)
o Comes in for non-hearsay purpose.
o 2) “I believe/I thought the government was after me.”
o Hearsay, but comes in under 803(3) exception
 Reasoning: The statements were admissible not for their truth—but instead
as circumstantial evidence of Harris’ state of mind—his knowledge of Steward’s
cooperation

Rule: Forward looking. The Hillmon Doctrine allows a statement of future intent
to be introduced under the state of mind exception to prove that the declarant in
fact later did what he or she had intended to do.
Mutual Life Ins. v. Hillmon (1892)
 Facts: Hillmon sues Mutual Life Insurance Company, New York Life Insurance,
alleging husband died, but he was really just in hiding; defendants introduced
evidence that dead body was Walters. Walters’ sister testifies saying she received
letter from her brother. “Dear sister…I expect to leave Wichita on or about
March the 5th with a certain Mr. Hillmon….for Colorado, or parts unknown to
me.” – Walters
 Insurance Company wants to introduced the letters written by Walters (Trial
Court excludes). Hillmon told people he planned to go. Insurance company needs
to put him at the grave. This makes it more probable than it would be without the
letters.
 Holding: SCOTUS says the letters by Walters should have been admitted.
 Reasoning: letters, even though hearsay, are competent evidence to show that
he a) went away and b) went with Hillmon. The letters help establish he was at
location where Hillmon was supposed to be.
o The letters are not admissible as narratives of facts—or as proof that
Walters actually left Wichita, but they are evidence to show that he had the
intention of going with Hillmon
o Introducing the letters makes it more probably that he did leave and he went
with Hillmon that if there had been no proof of such an intention
o ‘The existence of a particular intention in a certain person at a certain time
being a material fact to be proved, evidence that he expressed that intention
at that time is as direct evidence of the fact as his own testimony that he then
had that intention would be.”
 Roth: This is relevant evidence because it goes to the mens rea, the intent
element of crime

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Rule: Backwards Looking. Declarations pointing backwards/to the past, are not
admissible under the state of mind exception
Shepard v. U.S. (1933) (Cardozo)
 Facts: Shepard convicted of murdering his wife. He is alleged to have poisoned
her. Evidence in question are conversations between Mrs. Shepard, while she
was ill in bed, and her nurse. She said to the nurse: “Dr. Shepard has poisoned
me.”
 Defendant sought to argue that wife was suicidal
 Plaintiff argued: defendant opened the door to testimony by rebuttal that she
had been poisoned—a state of mind inconsistent with being suicidal
 Holding: The wife’s statement is hearsay and not admissible; it is not permitted
under the state of mind exemption
 Reasoning: In Hillmon, the statement faced forward. This statement faces
backwards and speaks to a past act. Supreme Court says the statement was not
offered to prove that she had this belief, but rather it was offered to prove that
Dr. Shepard had poisoned her, which was a past act. The statement was not: “I
believe Dr. Shepard has poisoned me.”
o “Declarations of intention casting light upon the future, have been
sharply distinguished form declarations of memory pointing backwards
to the part.”
o “When the risk of confusion is so great as to upset the balance of
advantage, the evidence goes out.”

Rule: Some courts permit the mental state exception to allow the introduction of
testimony that a declarant stated a plan to meet another person to show that the
other person went o the location where the declarant said they would meet (extends
Hillmon to declarant state of intent to prove third party)
U.S. v. Houlihan (D. Mass. 1994)
 Facts: Boyden found dead. As he was leaving his sister’s apartment the previous
evening, he allegedly told his sister he was going “to meet Billy Herd.” Herd and
others were charged with Boyden’s murder
 Government argued: statement is admissible because it constitutes a statement
of a then existing mental or emotional condition under FRE 803(3)
 Issue: Whether Congress intended to codify Hillmon in full in Rule 803(3)?
 Holding: Because Rule 803(3) clearly says that statements of intent are
admissible, the Court held that Rule 803(3) codifies Hillmon as written and does
not disturb its conclusion
 Reasoning: Court looks at circuit split as to whether statements under 803(3)
exception require independent evidence in connecting the declarant’s statement
with the declarant’s conduct. Had Congress intended to limit Hillmon—by
requiring independent evidence—it would have done so
o Second Circuit: Declarations of intentions of future plans are
admissible against a non-declarant when they are linked with
independent evidence that corroborates the declaration
o Ninth Circuit: statements of a declarant’s intent are admissible under
803(3) to prove subsequent of a person other than the declarant without
corroborating evidence

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Problems
 3.38 – Sam is arrested when he tries to enter the United States from Mexico and
cocaine is found underneath his car. At his trial on charges of attempted
smuggling, he wishes to elicit testimony from the arresting officer that, when the
cocaine was discovered, Sam said “I don’t know where that came from.” The
prosecutor objects on grounds of hearsay. How should the judge rule?
o Answer: Is it relevant? Yes, he’s trying to prove that they weren’t his
drugs.
o Hearsay: It’s being offered to prove that he didn’t know where they came
from (truth of the matter asserted in the statement
o Exception:
 Not a party opponent
 Excited utterance?
 If it’s going to fall within any exception it’s 803(3)—best argument
for defendant is that “I don’t know” is a state of mind
 Cannot be offered to prove where it came from because of the
Shepard limit of proving something in the past
 3.39 – Herny Jumpertz was acquitted in 1859 of the murder of his mistress,
Sophie Werner. The prosecutors argued Jumpertz had killed Werner to rid
himself of her, and Jumpertz claimed Werner had committed suicide. To prove
that Werner was suicidal and to rebut the prosecution’s claim of motive,
Jumpertz introduced a letter that he said he had received from Werner shortly
before she died. In the letter, Werner declared she soon would “renounce the
world and be in the grave.” Jumpertz also called two witnesses who testified that
they had discussed the letter with him shortly after he had received it.
o Answer: Judge should rule the letter admissible under 803(3) because it’s
a statement of a plan; should come in to prove that she was suicidal and
acted on it. (Hillmon)
 3.40 – Former football star O.J. Simpson was charged in Los Angeles in 1994
with the murders of his former wife, Nicole Brown Simpson, and her friend
Ronald Goldman. The prosecution sought to introduce evidence that shortly
before her death, Nicole Brown Simpson told relatives and friends that her ex-
hubsand was stalking her and that she was afraid of him. The trial judge
excluded the testimony on the grounds of hearsay. Following Simpson’s
acquittal, relatives of the victims won a civil judgment against him for wrongful
death. The judge in the civil case admitted, to prove state of mind, the
statements excluded in the criminal case. The civil plaintiffs argued that Nicole’s
state of mind was relevant to support the claim that she made a final break with
him on the day of the murders, which in turn gave him the motive to kill her. Was
the ruling in either criminal or the civil case erroneous?
o Theory that allowed statements in? 803(3)
o Can it come in to prove that he had been stalking her? No. “not
including a statement of memory or belief.” Even if she said “I believe OJ
was stalking me.” Not admissible to prove that he had been stalking her
o What if she said, “I’m going to leave him”? This would be admissible under
803(3), similar to a future plan like Hillmon
o “I’m afraid of him”  if you argue that this demonstrates her emotion or
fear and she was going to break it off, which created a motive; however
defense will argue that this demonstrates something happened in the past

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that made her afraid, which probably won’t be allowed in. You have to
make it relevant for some purpose
o Confrontation clause – no, not testimonial; she told this to her friends and
relatives

INJURY REPORTS

F.R.E. § 803(3): Exceptions to the Rule Against Hearsay—Regardless of

Whether the Declarant is Available as a Witness
(4): Statement Made for Medical Diagnosis or Treatment. A statement
that:
(A) is made for—and is reasonably pertinent to—medical diagnosis or
treatment and
(B) describes medical history; past or present symptoms or sensations;

Introduction
 FRE 803(4) exempts from the hearsay rule a broad range of statements made to
physicians or others for the purpose of medical diagnosis
 Justification/rationale: The theory is that self-interest tends to keep a patient
honest. But, controversially, the federal rule expands the exception to cover
statements made to physicians hired, not for treatment, but with an eye to
litigation
 Crawford has created additional uncertainty and many questions turn on
whether the statements are testimonial
 Things to look for:
o Statement can be made by the patient, by someone representing the
patient, or by the medical professional
o Rule 803(4) does not require that the statement be made to a physician. As
long as it is made for purposes of obtaining diagnosis, or treatment, it
could be made to anyone
 EMT, nurse, social worker, or sometimes even a family member
o The rule is not limited to statements of present symptoms. If made for
purposes of medical diagnosis or treatment, statements of past symptoms
(for example, “my right side has been hurting for a week” or “I felt
numbness in my left hand”) are admissible
o The statement must be pertinent to the diagnosis. The identity of the
perpetrator or tortfeasor is generally not pertinent to such diagnosis
o What is excluded? Statements of fault!
 “I was hit by a car”  inception or general cause
 “And it was that shmuck Joe driving the car”  not covered

Analysis
 Statement reasonably pertinent to medical diagnois or tratement?
o Made to whom?
o Hospital personnel? Friends? Family?
 And describes medical history—past/present symptoms or sensation—inception
or general cause?

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o Not about accident/incident?

o Exception: domestic violence

Rule: Too much information. Statements must be reasonably pertinent to medical

diagnosis or treatment and, generally speaking, statements of fault are not
reasonably pertinent
Rock v. Huffco Gas & Oil Co. (5th Cir. 1991)
 Facts: Rock injured on the job by falling through a step; doctors told him to use a
splint and wear crutches; Rock fell/slipped again at work; ankle worsened; Dr.
Rau asked for medical history; Rock had venous insufficiency—had several
surgeries and died
 Holding: Statements of doctors constituted hearsay and were not admissible
 Reasoning: Doctors only needed to know that Rock sprained his ankle not that
he may have “twisted his ankle with stepping through a rusted out or defective
step.”’
o Statement must be pertinent to the diagnosis
o It’s more information than is needed by a doctor
o It goes to fault, which is not reasonably pertinent

Problems
 3.41 – A woman brings her infant daughter into the emergency room and tells
the intake clerk, “My boyfriend burned her with a cigarette. He gets nasty when
he’s been drinking.” Is all or part of this statement admissible against the
boyfriend in a subsequent prosecution for battery?”
o Domestic violence exception. “My boyfriend burned her with a
cigarette.” All or part of this would be admissible
 It makes sense that the mother’s statements, speaking on behalf
of infant daughter, are admissible as to the “burn” not the
boyfriend portion
 Courts, however, in the context of domestic abuse have
applied 803(4) somewhat differently ad more broadly in terms of
what is reasonably pertinent to medical diagnosis.
 Many courts would treat the boyfriend as being reasonably
pertinent, because the idea is not just that you address the
cigarette burn, as a physician, but deal with the abuse, too (not
that he is a drinker, but that the boyfriend did this)
o “He gets nasty when he’s been drinking.” Inadmissible
 Declarant could not have reasonably believed that this would be
pertinent to medical diagnosis or treatment—this looks more like
the declarant making a record for civil litigation.
 3.42 – Along with his wife, a miner sues his employer for causing his respiratory
illness. Their lawyer hires a physician as an expert witness, and the miner
tells the doctor, “My lungs started to hurt ten years ago, a month or so after I
started working in the mine.” The miner dies before the trial. Is his statement to
the doctor admissible to prove when the disease began manifesting itself?
o While medical history and description of symptoms are the types of
statements generally made admissible under Rule 803(4), the
circumstances present here are typically not how such statements come
about.

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 These statements were not made for the purposes of obtaining

medical treatment
 The expert witness was not the plaintiff’s treating physician, nor
did the patient have any expectation that the expert witness
would treat him
 These statements were not made for the purpose of obtaining a
medical diagnosis
 The plaintiff was already diagnosed, nor did the plaintiff have any
reasonable expectation that the physician expert witness would
diagnose him
o This is the type of statement which we would exclude under the Spirit of
Rule 803(4), despite it looking circumstantially like a statement we’d
include
 It’s made for the purpose of creating a record — or in this case,
prepping an expert witness — for civil litigation
 The plaintiff has no self-interest founded in health and treatment
in conveying these statements, just self-interest in obtaining a
favorable verdict in litigation
 These types of statements do not have the guarantees of
reliability which we look for in Rule 803(4)

REFRESHING RECOLLECTION &

PAST RECOLLECTION RECORDED
Refreshing Recollection:
 When the witness once knew something but has since forgotten it. You can use
anything to refresh a witness’s memory but the document used for refreshing
past recollection does not have to meet the requirements of recorded recollection
since the proponent is not allowed to have it read to jury or recorded as an
exhibit
 Witness has to have an actual memory that is being refreshed
 Document is intended to help refresh that recollection
o Planner
o Calendar
 Detectives, officers, for example, handle hundreds of arrests

Analysis
 Foundation. Must Prove:
o The witness cannot remember
o There is a document that would help her remember
o The witness recognizes the document
o The witness can articulate how she recognizes the document
o After reviewing the document, the witness has an independent
recollection
 Procedure:
o “Is there anything that would refresh your recollection…?”
o Take the document from the witness and have her testify from her
independent recollection
o Must show the document you are using to the other side
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o Witness must be available for cross-examination on the document

o Other side may offer it into evidence (Rule 612 – give the adversary the
option to offer into evidence anything the opposing party has used to
refresh a witness recollection)

F.R.E. § 803(5) Recorded Recollection.

A record that:
(A) is on a matter the witness once knew about but now cannot recall well
enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an
exhibit only if offered by an adverse party.
[note: we have them read from the document rather than just admit the
document, to keep it in the form of live testimony. Prosecution doesn’t just get to

Rule: Where the witness has an independent recollection, anything may be used to
stimulate and vitalize the recollection with regard to source or origin.
U.S. v. Riccardi (3d Cir. 1949)
 Facts: Witness used her longhand notes to refresh her memory as to the items
that had been moved from her home and then lost by movers. With aid of these
lists, the witness testified based on her refreshed recollection
 Defendant argues that the lists should not have been used because they were
not made by the witnesses at or shortly after the time of the transaction; and
Farid was reading from the list
 Government contends it is the recollection and not the writing which is
evidence
 Issue: Whether the witnesses who testified were properly permitted to refresh
their memory?
 Holding: No abuse of discretion when trial judge permitted the use of lists
 Reasoning: Difference between past recollection recorded and present
recollection refreshed is the ability of the witness to testify from present
knowledge. The primary evidence here is not the writing—“the primary
evidence is the oral statement of the hostile witness.” The opposite party has the
opportunity to either show that it has not evoked what appears to be the witness
as a memory or the memory is a phantom and not reliable.

Past Recollection Recorded:

 Asks the judge to allow the witness to read from the document into 803(5)(B))
 The witness can read from the document, but it does not come into evidence
unless otherwise admissible

Analysis
 (1) Witness does not have adequate recollection of the subject to testify “fully
and accurately”

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 (2) Witness made the record (or adopted record made by someone else) when it
was able to
 (3) The record will be read to the jury so that the jury will be able to make use of
information if the witness had remembered it and testified about it
 The exception does allow the document to be treated as an exhibit at the
opponent’s option

Procedure
 “At any point did you made a record of the arrest you made that night?”
 If I showed you the report would you then be able to remember the name of the
person you arrested that night
 “Do you recognize it?”
 If the witness does not have an independent recollection (recollection refreshed
803(5)(A)), then prosecution must seek to have the record itself admitted into
evidence, via the witness reading it (803(5))

Fisher v. Swartz
 Facts: Witness could not remember the items he had ordered. Plaintiff showed
him a copy of the order, but the witness had no independent recollection. Copy
entered evidence
 Holding: Admissible as past recollection recorded

Problem
 3.43 – An eye-witness to a hit-and-run accident calls his wife fifteen minutes
later, tells her the license plate number of the car he saw leave the scene, and
asks her to write it down. She does so. Under what circumstances will her note
be admissible in a later prosecution of the driver? Under what circumstances
may it be shown to the jury? Under what circumstances may it be used to refresh
the recollection of the husband the wife?
 Husband (eyewitness): Not admissible
o Personal knowledge not an issue for the husband (F.R.E. 602)
o Past Recollection Recorded. It’s not refreshing his recollection and
it’s not his past recollection recorded, it’s not his note.
o Adopted? It she read it back to him and he said: yeah, that’s right.
Then we have the option of admitting it because he had adopted it
(803(5)(B)).
o Present sense impression? Is 15 minutes too long? What was he
doing before he called his wife
o But, we still have the issue of it not being “made” by the witness
 Wife: If wife testifies that he called me and said write down these numbers…she
has no independent knowledge
o 803(1) or 803(2)? Could work depending on how much he told her;
personal knowledge is an issue for the wife!
 803(1)—let’s say you remove the timing issue, if he had written it down instead
of calling her then it could come in under his testimony and the note
o He would say: “I saw the accident, I wrote down the number, please
look at exhibit 1. How do you know that’s the piece of paper…” Now it
can come in if we authenticate the note

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o He could say I wrote it down when it was fresh in my mind 803(5) or if

he wrote it down then 803(1)
o BUT in the problem the wife wrote it down, if he adopted it or approved
it then it is still okay
o 803(5) adoption would be under 5 not (1)

BUSINESS RECORDS
Introduction
 Rationale: Why is this more reliable than average hearsay? Something in the
self interest of the business entity in keeping accurate records. At some point,
though, we might wonder if they are cooking their books, there is always the
possibility that people are lying.
 803(6)—you need to establish (A)–(E)
o (A) – timing aspect; likely that the person remembers accurately if near
timing of event, similar to present sense impression; two elements in (A):
contemporaneous and someone with knowledge; we’re dealing with
potential for double hearsay
o (B) – “course of regularly conducted activity” – assurance of reliability
because if it’s something you regularly do we don’t worry about one-off
fabrication as much; describing entities that could qualify
 It can be a church
 Entity does not have to be legal; Gibson – drug ledger
o (C) – reinforces (B)
o (D) – all these conditions are shown by the testimony of custodian or
other qualified witness — you’re going to find a witness who can tell you
(A) – (C) established, that this person had a practice of keeping records,
that can be records custodian for that entity or someone else who is
qualified; certification option in lieu of live witness
 902(11) - Evidence That Is Self-Authenticating. The following
items of evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted… (11) Certified
Domestic Records of a Regularly Conducted Activity. The original or
a copy of a domestic record that meets the requirements of Rule
803(6)(A)-(C), as shown by a certification of the custodian or another
qualified person that complies with a federal statute or a rule
prescribed by the Supreme Court. Before the trial or hearing, the
proponent must give an adverse party reasonable written notice of
the intent to offer the record — and must make the record and
certification available for inspection — so that the party has a
fair opportunity to challenge them.
 Might you send something in addition to a subpoena request? Need
to give opposing part an opportunity to challenge
 If you want to go by certification in lieu of a live witness, you must
notify the opposing party and ask if they have any objection
o (E) – opponent does not show that the source of information or the method
indicate a lack of trustworthiness…

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 Once the party who wants to offer the business record meets its
burden of A-C, burden shifts to opponent to show that it is
nevertheless trustworthy; o

F.R.E. § 803(6): Records of Regularly Conducted Activity.

A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information
transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E)  the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.

Analysis
 Was the record made near the time (or from information transmitted by)
someone with knowledge?
o Prepared in anticipation of litigation? (Palmer)
o If so, by a disinterested party? (Lewis)
 Regularly conducted activity of a business, organization, occupation?
 Nothing opponent shows to make this untrustworthy?
 Watch out for hearsay within hearsay! (if not employee) (Wilson)

Generally
Rule: Affirms F.R.E. 803(6)(D) approach—custodian is reliable enough; don’t need
chain of employees
State v. Acquisto (A.2d 1983)
 Facts: Acquisto was convicted of first-degree sexual assault. At trial, Acquisto
presented evidence of an alibi through the testimony of his mother and a friend,
both of whom were employed at IMH. They testified they saw Acquisto at home
the morning of the alleged assault, 9/27, since the employees of the IMH were on
strike, and therefore were not able to go to work
 The government called Mrs. Judge, custodian of records for IMH, she handled
payroll records, to rebut the alibi. The Voucher Documents tended to show that
the strike at IMH was not in progress on the date that Acquisto claimed and that
Griffin & Callahan worked on 9/27
 Defendant/Acquisto challenges the receipt of the Voucher Documents into
evidence on the ground that the Government did not meet the common-law
requirements for introduction of Business Records; specifically Acquisto argues
that because Judge was not the source of the information contained in the
Voucher Documents — IMH was — and that because no one from IMH testified
as to the certification of those business records, the evidence was inadmissible

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 Holding: Court dispenses with common law approach, which required that each
employee in the chain of information contained in a Business Record be required
to testify
 Reasoning: Custodian of payroll is reliable enough, even though vouchers made
up in advance, she still verified before sending out/processing

Qualifying Businesses: 803(6)(B)

Rule: Laying the foundation for the records as business records can be done by
anyone who has the requisite knowledge to say what is required - 104(a) in judge’s
determination of admissibly under 803(6)
Keogh v. Commissioner of Internal Revenue (9th Cir. 1983)
 Facts: Defendant sued by IRS for underreporting his share of equally divided
tips as casino dealer. Primary evidence against defendant was personal diary of
co-worker who recorded his share of tips each night. Wife testified that she saw
her husband, the co-worker, making these entries daily
 Holding: Diary in and of itself is hearsay, but it can come in under Business
Records Exception F.R.E. 803(6)
 Reasoning: No reason that Whitlock would have lied to himself; diary is also
corroborated by Dunes’ payroll records. Foundation was laid by the wife, in order
to establish that this was a qualified business record. Wife testified that she only
saw Whitlock make entries, after work
o Even though wife didn’t keep records, she had sufficient personal
knowledge of him doing it and could show he did it with regularity
o 104(a) determination. The judge is listening to the wife lay the
foundation and if judge finds foundation laid admit the document

Rule: Drug trafficking can count as a “business” under F.R.E. 803(6)

U.S. v. Gibson (9th Cir. 1982)
 Facts: Gibson and several co-defendants convicted of heroin trafficking; Logan’s
ledger was admitted into evidence under F.R.E. 803(6), which contained
records of drug transactions and implicated Gibson
 Defendant Gibson argued it was improperly admitted because the records
were not kept in the course of regularly conducted business and because entries
were untrustworthy
 Holding: 9th Circuit affirmed lower court’s admission of the ledger into evidence
 Reasoning: Because Logan had to rely on the entries, there is little reason that
she would have distorted them; the fact that it was Logan’s regular practice to
enter large drug transactions into the ledger and that they were entered
contemporaneously was sufficient to satisfy 803(6)

Qualifying Records: 803(6)(B) and (C)

 Sometimes you can have a traditional business, like a railroad company, but not
everything they generate will be a qualifying record

Rule: Not admissible if prepared in anticipation of litigation. The fact that a

company makes a business out of recording its employees versions of their
accidents does not put those statements in the class of records made in “the regular
course of business”
Palmer v. Hoffman (U.S. 1943)

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 Facts: Train engineer interviewed after accident, but it was excluded from
evidence.
 Railroad’s ordinary course of business records: payrolls, accounts
receivable…accident reports are generally not made in the ordinary course?
 Holding: The evidence was properly excluded
 Reasoning: The engineer knew at the time he made the report that the railroad
would likely be sued. The statements’ primary utility is litigating, not in
railroading

Rule: Admissible when prepared by disinterested party. Accident reports,

however, can be considered a “regularly conducted activity” if the custodian
preparing the reports was not involved in the accident and the reports serve a
purpose other than litigation (i.e. helping the company determine if equipment is
defective, as was the case here)
Lewis v. Baker (2d Cir. 1975)
 Facts: Plaintiff injured on the job for Penn railroad; plaintiff claimed he was
injured when the handbrake failed to hold. Defendants sought to rebut this with
evidence that the brake had functioned properly immediately prior to the
accident when plaintiff tested it and immediately after the accident when it was
checked in preparation of accident report.
 Holding: Reports allowed in under 803(6)
 Reasoning: Not the same motivation post-accident here as in Palmer. The ones
preparing the reports were not involved in the accident. The reports were of
utility to the employer ascertaining whether equipment involved was defective.

Rule: Just because something is generated by a business doesn’t necessarily mean

it’s a business record
Abascal v. Fleckenstein (2d 2016)
 Facts: Abascal was inmate; he alleged that he was physically assaulted and
abused at Attica prison; the Correctional Association of NY (Association)
conducted a report which found widespread sense of fear and intimidation
amount inmates
 What was wrong with the report that the plaintiff, prisoners, wanted to
offer into evidence? Prisoners are anonymous.
 Holding: Report is hearsay and does not fall under the business records
exception; district court abused its discretion in admitting it and it was not
harmless error
 Reasoning: Also couldn’t get in the door of calling it a public record because the
company that prepared it was private. Reasoning for not falling with 804(6):
o (A) Timeliness – the report was not made at or near the time of alleged
incident; six months too long of a delay
o Knowledge –report was not made by someone with knowledge of the
underlying information; unclear from the record who authored the
report; even though it’s a business record prepared –report was not
made by someone with knowledge of the underlying information;
unclear from the record who authored the report; even though it’s a
business record prepared by Attica, it’s not clear that the person
creating the report had knowledge

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o (A) “Regularly conducted activity” – making of the report was not

the kind of regularly conducted activity contemplated by the drafters of
FRE 803(6)
o F.R.E. 803(8)(ii) – Attica argues the report should come in under this
exception, if not business records but 2d circuit says that it does not
satisfy the exception; the association that prepared the report is not a
public agency
o Hearsay within hearsay – the report, hearsay, also contained hearsay
within it—statements from inmates
o Not harmless error because the report likely played a role in the jury’s
awarding of damages

Mutual Life Ins. v. Hillmon (1892)

 Were the letters by Walters business records? Letters to one’s sister wouldn’t
really count as ordinary course of business
 Rationale of the rule is not intended to be a quick text or email, however, let’s
say it’s a housekeeper who keeps records for the household—if it’s something
that is done regularly, then it may be admissible

Sources of Information
 Not only do they actually work for the business, but the content must be related
to their job. It must be under a business duty. Part of the reliability is that
everyone is operating under a business duty—that is the content limitation of
what is covered.
 Example: police report incorporating information obtained from a bystander:
officer qualified as acting in the regular course but the informant does not

Rule: In order to be admissible under 803(6)(D) the individual must not be an

outsider of the business
Wilson v. Zapata (5th Cir. 1991)
 Facts: Wilson sued employer Zapata for sex discrimination and emotional
distress. District court refused to exclude portions of statements made by
Wilson’s sister, Laird, to a social worker that Wilson is “a habitual liar and has
been all of her life.”
 Hospital record contains double hearsay but if both the source and the
recorder of the information, as well as every other participant in the chain
producing the record are acting in the regular course of business, the multiple
hearsay is excused by Rule 803(6)
o If the source, however, is an outsider, as is the case here, Rule 803(6)
does not by itself permit the admission of the business record
 Defendant Zapata: wants the statements in, because they show Wilson is lying,
and argue that F.R.E. 803(4) excepts from hearsay statements made for purposes
of medical diagnosis
 Holding: Statements allowed in, but not under business records exceptions
 Reasoning: 803(6)—can’t come in as a business record because sister didn’t
work for the hospital!
o The medical reports did not affect Wilson’s substantial rights

Problems, p. 184

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 3.44 – An author hurt in an automobile collision sues the other driver for
negligence and seeks compensation for money she lost because her injuries
prevented her from finishing a novel. She seeks to introduce copies of daily e-
mailed messages she sent to her brother before the accident describing her
progress on the novel. Do the messages qualify as business records?
o Answer: even though this a self-employed individual, there is good
argument that her messages to her brother qualify as business records;
writing could be a “calling” for this woman, she is doing this regularly,
we assume foundation will be laid by her
o However, this could be contested if it starts to look like she is trying to
create a record
o Here, she is not writing the emails for herself, she is writing them to
her brother, it’s not dipositive but it’s a factor
 3.45 – Barry bonds testified that he never used performance enhancing steroids.
The government later indicted him for perjury and sought to prove its case at
trial by introducing reports prepared by blood and urine testing company,
indicating that samples produced by Bonds were determined to contain steroids.
The samples were provided to the laboratory by a personal trainer who
worked for Bonds. The trainer apparently told the laboratory that the samples
had come from Bonds. The trainer refused to testify at trial, though, even after
he was held in contempt. The trial judge then ruled that both the reports and the
trainer’s statements were inadmissible hearsay. Should the reports have been
deemed admissible under the business records exception?
o Answer: Barry Bonds; trainer does not work for laboratory, he’s like
the sister in Zapata; if the sample doesn’t come from Barry Bonds, the
report is not relevant. If we put aside the “it came from BB.” It’s the
statement “this is barry bond’s blood” that was at issue
o Does the rest of the report qualify as a business record?
o The lab in the ordinary course that does tests of samples, then
generating reports of their analysis is in ordinary course. If the lab’s job
is to analyze samples and record results in their reports
o 1) Admissibility and trustworthiness of sample analyzed by lab. Report
meets A-C as long as we get someone from the lab to testify that this is
what they found
o 2) What makes it relevant – is that it came from barry bonds. Under (E)
there may be something suspicious about sample but it might not alter
reliability of WHAT they were given
o Still doesn’t mean it comes in at trial
o But dealing with the hearsay aspect – if we get someone to testify that
this is what they do as a lab
o Harder part is that this is not a sample that came unadulterated
o 801(d)(2)(d) – was trainer an employee or agent of Bonds, was taking
his blood within scope of trainer’s employment; ninth circuit didn’t buy
this argument
o Business record is only relevant if it is bond’s sample

Absence of Record of a Regularly Conducted Activity

 803(7): It is hearsay to talk about something that did not happen

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o This was added to deal with fact that courts were sometimes perplexed by
how to deal with situations when party was trying to prove the absence of
a record and whether analytically that was hearsay or not
o Custodian saying: “We keep this kind of record when something happens.
And I have searched the records and this [xyz] never happened.”

Rule: 803(7) permits use of business records to show the nonoccurrence of an event
U.S. v. Gentry (7th Cir. 1991)
 Facts: Gentry told fellow employees he bit into a pin from M&Ms from vending
machine. He took polygraph, showed he was lying. He confessed that he lied
about it. He was convicted of making a false report of food tampering. At trial,
employee of manufacturer sought to introduce that there were no other reports
of pins in M&M candy
 Holding: 803(7) permits use of business records to show the nonoccurrence of
an event
 Reasoning: Counterfactual – if that happened, this evidence would exist.

A Few Good Men Hypo

 Trial of two officers alleged to have killed Santiago
 Assuming the papers were in evidence, were any business or public records?
o Phone records (business or public)
o Laying foundation for log books
o Letters requesting transfer
o Order could be business records
o Inventory or record of Santiago’s locker from Guantanamo — showed he
hadn’t packed which was inconsistent with story that he was told he was
going to be transferred
o Telephone record that shows the calls Jack Nicolson made
o And absence of record 803(7) or 803(1) (equivalent of absence of public
record, depending on how we characterize Guantanamo)

PUBLIC RECORDS
Introduction
 Narrower than the business records exception in F.R.E. 803(6). Lots of
crossover and confusion when the record doesn’t fall under 803(8)–(10) because
most, if not all, public agencies qualify as “businesses” for purposes of that
exception.
 F.R.E. 803(8) – (A)(ii) and (A)(iii) for first time in discussion this semester we
are seeing difference between civil and criminal
o 803(8)(A)(i) – office’s activities
 Treasury department records of receipts
 NIH records of grants made
 Receipt from a police department can be admitted if it is ministerial
o 803(8)(A)(ii) – “matter observed while under a legal duty to report but
not including in a criminal case, a matter observed by law-enforcement
personnel” — document they create while under duty to report, but if it’s a
matter observed by law-enforcement personnel

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 Inadmissible: DD5 in criminal case….

 Admissible: Natl Weather Service Reports of rainfall levels, under
legal duty to report
 Environmental Department’s analysis of local water supply
 US Customs records of border crossings
 Not categorical in sense of saying “doing a law enforcement
job”
 Think about what it is they are doing in the particular case,
is it a law enforcement task, such that for those purposes they
are wearing the hat of law enforcement personnel?
 We have lots of public agencies that have duties to report and can be
offered under public records exception so long as tertiary inquiry
under (B) satisfied—nothing that indicates that this particular report
indicates a lack of trustworthiness
o 803(8)(A)(iii) – factual findings from legally authorized
investigation. government can’t offer against accused, but you could use
it against the gov’t? Factual finding vs. legally authorized investigation
 Report by federal mine safety
 Report by CDC on cause of Ebola epidemic
 Justification: assumption that a public official will perform his duty properly and
the unlikelihood that he will remember details independently of the record. Some
sense that evidence that falls under this exception is more reliable than average
hearsay. We think public agencies have a high level of trust. There’s also a sense
of necessity with this exception.
 More controversial area of public records is that of the so-called “evaluative”
report. Consider following factors in assessing admissibility of evaluative reports:
o (1) Timeliness
o (2) special skill or experience of the official
o (3) whether a hearing was held and the level at which conducted
o (4) possible motivation problems suggested by Palmer

Analysis
 (1) Does the document set out the office’s activities? (e.g. NEA’s grant list,
treasury receipts)
 (2) Was the matter observed while under legal duty to report? (e.g. national
weather service rainfall)
 (3) If this is a criminal case, no observations by law enforcement are
admissible against defendant but records that are routine and have no
adversarial are admissible.
 (4) Factual findings from law enforcement admissible if:
o This is a civil case and investigation was legally authorized; or
o They are being offered against the prosecution and the investigation was
legally authorized.
 (5) Are there any other reasons why we should question the reliability of the
document?
 (6) Confrontation clause issue? (Melendez Diaz and Bullcoming)
o Criminal case?
o Statement offered against defendant?
o Declarant unavailable to testify?

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F.R.E. § 803(8)–(10)
The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(8) Public Records. A record or statement of a public office if:
(A) It sets out
(i) the office’s activities
(ii) a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings
from a legally authorized investigation
(B) the opponent does not show that the source of information or other circumstances
indicate a lack of trustworthiness
(9) Public Records of Vital Statistics. A record of birth, death, or marriage, if
reported to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony—or a certification under Rule 902—
that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that:
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind
o Statement testimonial?

Rule: F.R.E. 803(8) should be construed broadly to ensure reports that contain
opinions or conclusion are not automatically excluded from evidence.
Beech Aircraft v. Rainey (U.S. 1988)
 Facts: Crash of a Navy training aircraft that killed two pilots on board. Widows
bring suit.
 Defense submitted JAG Report evidence, prepared by Lieutenant Morgan,
broken up into Finding of Fact, Opinions, and Recommendations, and completed
during 6 weeks after crash. Lieutenant Morgan, stated among his opinions, that
due to death of pilots and destruction of aircraft, “it is almost impossible to
determine exactly what happened” but nonetheless continued with
reconstruction of event saying the most probable cause of the event was pilots’
failure to maintain proper interval
 Rainey argues: This is not a factual finding, this is opinion based.
 Issue: Whether F.R.E. 803(8)(A)(iii) which provides an exception to the hearsay
rule for public investigatory reports containing factual findings extends to
conclusions and opinions contained in such reports?
 Discussion: federal courts disagree on the application of 803(8) application
o Fifth & Eleventh Circuits – factual findings did not encompass
“opinions” (narrow view)
o Sixth – factual findings may be those which are made by the preparer
(broad)
 Holding: JAG report opinion admissible under 803(8)— Portions of investigatory
reports otherwise admissible are not inadmissible merely because they state a

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conclusion of opinion. As long as the conclusion is based on a factual

investigation and satisfies the Rule’s trustworthiness requirement
 Reasoning: Neither the language of the rule nor the intent of its framers calls
for a distinction between “fact” and “opinion.” Investigator here based his
opinion on the investigation
o Rainey’s line drawing too hard
o We could characterize what JAG Report ultimately concludes as factual
finding

Rule: Law enforcement records and Confrontation Clause—observed by Law

Enforcement personnel. Analysts statements like police reports do not qualify as
public records—and when the analyst is unavailable to testify there is likely a
Confrontation Clause violation.
Melendez-Diaz v. Ma. (U.S. 2009) (Scalia)
 Facts: Cocaine trial. Lab analyst identified substance as cocaine and signed a
sworn affidavit to that effect. Analyst no longer available for trial. Prosecution
seeks to offer the affidavit.
 Defendant objected to admission of the certifications arguing it violated
Confrontation Clause. The fact in question is that substance found in Diaz’
possession was, as prosecution claimed, cocaine
 Holding: Testimonial.
 Reasoning: 6A guarantees a defendant the right “to be confronted with the
witnesses against him”—so to the extent the analysts were witnesses, they
certainly provided testimony against the petitioner
 CC Clause Factors: 1) There is little doubt that the documents at issue fall
within testimonial statements—they are plainly affidavits—this puts it in the
core nucleus of what is testimonial. 2) sole purpose of the affidavits was to
provide composition of the cocaine—they are producing the tests for trial; 3)
witnesses – absent a showing that the analysts were unavailable to testify at
trial or that defendant had a prior opportunity to confront them—they are
accusatory witnesses
o Forensic evidence is not immune from manipulation
o This is different from Crawford, Davis, Hammond—where cases
involved typical fact witness. The analyst isn’t accusing any one person.
They are doing what they do in the ordinary course of business.
 Business/Public Records – Business and public records are generally
admissible absent confrontation not because they qualify under an exception to
the hearsay rules, but because—having been created for the administration of an
entity’s affairs and not for the purpose of establishing or proving some fact at
trial
 Roth: The court draws a distinction between records kept for business purposes
and those kept for litigation purposes; so per Scalia these would be excluded
under 803(6) and also cites 803(8)’s definition of public records as excluding
those observed by law enforcement
 Dissent: “Laboratory analysts who conduct routine scientific tests are not the
kind of conventional witnesses to whom the Confrontation Clause refers.”
Testimony at issue here is the result of “neutral, scientific testing;” bags were
available for defendant to test but he made no such efforts; emphasizes the
importance of forensic investigations; confrontation clause does not refer to

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these types of “statements” because laboratory analysts are not witnesses

against the defendant
 Contrast with 803(5): If you have prosecutor bring in the officer and refresh
recollection or past recollection recorded, this falls under 803(5) and you avoid
Confrontation Clause issue because officer is present and available for cross.

Rule: Surrogate testimony does not substitute for or satisfy the confrontation clause
Bullcoming v. New Mexico (U.S. 2011) (Ginsburg)
 Facts: DWI arrest. Analyst doing the blood work was on paid leave by the time
trial came around. Prosecution introduced analyst’s unsworn affidavit through
another analyst, who testified to the reliability of the reports.
 Holding: This does not satisfy the Confrontation Clause. The surrogate cannot
testify to the details of personal observation required in these tests that are the
usual subject of cross—she lacks personal knowledge.
 Reasoning: When the state elected to introduce Surrogate’s certification, she
became a witness Bull had the right to confront. With original analyst on the
stand, Bull’s counsel could have asked why he was put on leave—incompetence?
Dishonesty?
o In jurisdictions in which “it is the acknowledged job of analysts to
testify in court about their test results” the sky has not fallen
 Concurrence (Sotomayor): This would be a different case if a supervisor, who
observed the test and the technician’s recording of results, testified at trial;
additionally, this was not a case where an expert witness was asked for his
independent opinion about underlying testimonial reports that were not
themselves admitted into evidence
 Dissent (Kennedy, Breyer, Alito): “Requiring the state to call the technician
who filled out a form and recorded the results of a test is a hollow formality.”
Here, a knowledgeable representative of the laboratory testified about the test,
he was someone who knew about the lab’s procedures, defense was able to cross
examine him—and the defense remained free to challenge any and all forensic
evidence
o It is then up to the jury to decide whether to credit the test or not
 Court has not answered questions of who you have to call

F.R.E. 804 EXCEPTIONS

Introduction
 Critical distinction between F.R.E. 804 and F.R.E. 803 is that before you can
invoke 804, you must establish that the declarant is unavailable as a
witness at trial
o Preference of Hearsay Rules: (1) 803, (2) 804
 Why do we require that the declarant be unavailable? If the witness is
unavailable then the necessity rationale becomes substantially stronger.

UNAVAILABLE
Analysis
 First step under 804 analysis is proving unavailability!

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 It’s an “or” so any one of these will establish unavailability

o (1) Is there a privilege? OR
o (2) Is declarant refusing to testify about subject matter? Willing to be held
in contempt? OR
o (3) Did the declarant witness testify as to not remembering the subject
matter? OR
o (4) Is the declarant unavailable because of death/illness? OR
o (5) Was the proponent unable to get the witness to attend? OR

F.R.E. § 804. Hearsay Exceptions; Declarant Unavailable

(a) Criteria for being unavailable. A declarant is considered to be unavailable as a
witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s
statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a
then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not
been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under
Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2), (3), or (4)
But subdivision (a) does not apply if the statement’s proponent procured or
o (6) Did the statement’s proponent wrongfully? make the witness
unavailable?

Rule: Can’t make yourself unavailable. You are not unavailable (i.e. you are
available) for the purposes of 804(a) if you take the Fifth Amendment in your own
case.
U.S. v. Bollin (4th Cir. 2001)
 Facts: Bollin convicted of participating in investment fraud scheme. Government
offers redacted version of the criminal defendant’s grand jury testimony.
 Defendant makes two arguments: district court abused its discretion when it
allowed gov’t to present a redacted version of his grand jury testimony but
refused to allow him to present the omitted portions (1) under rule of
completeness; (2) Bollin contends he was “unavailable” because he had invoked
his Fifth Amendment privilege against self incrimination
 Holding: Not admissible—Court finds that he available (threshold question) and,
thus, the District Court did not abuse its discretion

Rule: Proponent of statement must make reasonable efforts to obtain declarant.

Proponent of the statement bears the burden of proving the unavailability of the
declarant
Kirk v. Raymark Industries (3d Cir. 1995)

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 Facts: Kirk is suing Owens Corning alleging that her husband’s mesothelioma
was caused by exposure to dust from asbestos during employment at NY
Shipyard
 Defendant, Owens, offered testimony of doctor who said asbestos-induced
mesothelioma is caused by certain fiber, which supported their defense because
their product, Kaylo, did not contain that fiber
 At trial, plaintiff Kirk was permitted to read testimony from Dr. Burgher, from
an unrelated NY State Court asbestos action who testified that it was possible for
mesothelioma to be caused by the fibers in defendant’s product
 Holding: Dr. Burgher’s prior trial testimony is hearsay and does not fall under
804(b)(1) exception
 Reasoning: Kirk failed to contact him and use reasonable means to prove he was
unavailable

FORMER TESTIMONY

F.R.E. § 804
(b) The Exceptions. The following are not excluded by the rule against
hearsay if the declarant is unavailable as a witness.
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing or lawful deposition,
whether given during the current proceeding or a different one; and
(B) is now offered against a party who had—or, in a civil case, who
predecessor in interest had—an opportunity and similar motive to develop
it by direct, cross, or re-direct examination

Introduction
 Rationale for Former Testimony Exception: If we had to choose between
nothing and former testimony, we’re going to prefer former testimony

Analysis
 Unavailable?
 Was this sworn testimony made under oath, subject to penalty for perjury at trial,
hearing, or lawful deposition, whether given during the current proceeding or a
different one?
o If yes, move on
o If no, exception does not apply
 Is this criminal or civil trial?
o Criminal: Same defendant?
 In criminal, we need exact identity
 If yes, did the defendant have the opportunity to cross-examine the
declarant and similar motive as in the trial currently at bar?
(Salerno)
 If yes, exception applies
 If no, exception does not apply
 If no, exception does not apply.

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o Civil: Did the “predecessor in interest” have an opportunity to cross

examine the declarant and as similar motive as in the trial currently at
bar? (broader application) (Clay v. Johns-Mansville)
 Predecessor in interest – broad interpretation = similar motive
 Narrow = some privity
 If yes, exception applies
 If no, exception does not apply

Rule: Civil Case. Prior testimony & similar motive. When analyzing whether
was someone is a predecessor in interest—look to whether the person is
substantially similar enough in terms of interests such that previous party had
similar opportunity to cross examine
Clay v. Johns-Manville Sales Corp (6th Circuit 1984)
 Facts: Wrongful death/asbestos suit. A doctor who had worked for defendant
corporation had knowledge about hazards of asbestos from years of working for
corp. Doctor died before trial. He had testified in deposition from a prior
asbestos proceeding on the harm caused by asbestos. Plaintiff sought to
introduce deposition.
 Holding: Admissible. Defendant in prior proceeding had a similar motive in
confronting the doctor’s testimony as the present defendant does
 Reasoning: Court construes “predecessor in interest” more broadly—are you
substantially similar enough in terms of your interests such that a previous party
had similar opportunity to cross examine. “If it appears that in the former suit a
party having a like motive to cross-examine about the same matters as the
present party would have, was accorded an adequate opportunity for such cross
examination, the testimony may be received against the present party.”

Rule: Criminal Case. Prior testimony—not similar motive. When a lawyer in

proceeding #1 has an opportunity, and seemingly should have a similar motive, to
develop testimony by probing, questioning, and crossing a witness, but does not do
so, it could be due to two reasons
U.S. v. Salerno (U.S. 1992)
 Facts: Famous mob case. At grand jury, two defendants testified under immunity
that the defendants were not part of the racketeering scheme. Defendant called
them to repeat testimony before the jury but they invoked the Fifth Amendment
so are unavailable. Defendant sought to introduce grand jury testimony. The
accused is seeking to offer prior testimony against government
 Issue: Whether Rule 804(b)(1) permits a criminal defendant to introduce the
grand jury testimony of a witness who asserts the Fifth Amendment privilege at
trial?
 Government argues: they did not have the same motive at grand jury that they
have in the current proceeding; prosecutor must maintain secrecy during the
investigatory stages of the criminal process
 Holding: Not admissible. Government may have had opportunity to cross
examine, but did not have similar motive. Remanded.
 Reasoning: The government may not have wanted to disclose their entire case
at the grand jury.

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 Dissent: Government had an opportunity and similar motive to develop the

grand jury testimony of witnesses Bruno and DeMatteis, therefore the transcript
admissible against gov’t under 804(b)(1)

Problems
 3.46 – newspaper reports that a local hospital illegally disposes of hazardous
materials. Hospital sues for libel. At trial, newspaper elicits testimony from
janitorial employee of the hospital that the hospital director had him pour toxic
waste into a storm drain. Under what circumstances, if any, will the transcript of
this testimony be admissible in a subsequent criminal case against the hospital
director for illegal dumping?
o 1) first case – civil
o 2) second case – criminal
 Need to establish janitor is unavailable.
 But this second case is against director. Can’t be offered against
director because director is not a party from the first case. In a
criminal case, we need the exact parties in order to offer former
testimony
 If criminal case was the hospital, then we have the hospital being
named a party in both cases and we ask whether the hospital had
a similar motive to develop testimony
 Let’s say janitor employee is available and is prepared to testify against hospital
director. Other routes to admitting janitor’s testimony?
o 801(d)(1) Declarant witness’ prior statement. If you want to do
more than show that the witness has said two different things—if you
prefer what witness said at the first trial, you can offer it for truth.
o 803(5) Past Recollection Refreshed. Ask them to take a look at what
you are marking for identification and see if it refreshes their
recollection under 803(5)
 3.47 – The manager of a gasoline station is prosecuted for illegally burying
engine oil in a vacant field. A mechanic who works at the station testifies that, at
the manager’s direction, she buried engine oil in the field. The jury returns a
verdict of not guilty. Under what circumstances, if any, may the mechanic’s
testimony be introduced in a subsequent civil suit for cleanup costs brought by
the city against the company that owns the gasoline station
o Case 1 – criminal
o Case 2 – civil
o 804(a) – unavailability established
o 804(b) – it’s not a criminal case so we don’t need exact identification
o We care about motive of defense in attacking the witness
o Do they have a similar motive in the two cases? Yes, you could
say similar motive
 On other hand, you could look at transcript from first trial and see
method of attack via witness’ credibility that is what defense
needs in first trial
 At criminal trial, you haven’t helped company if you show that
your witness wasn’t involved; so the company in the second trial
could have a good argument that prior defense did not have
similar motive

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o Maybe prosecution had to prove different things and thus the line of
defense in criminal prosecution and line of defense in civil case have
different motives

DYING DECLARATIONS

F.R.E. § 804(b)(2)
(b)(2) Statement Under Belief of Imminent Death. In a prosecution for
homicide or in a civil case, a statement that the declarant, while believing the
declarant’s death to be imminent, made about its cause or circumstances.

Rationale
 “Indicia of reliability”
 We think people are motivated to tell the truth before they die. But just like
excited utterances, while they could be more reliable you could also be overcome
by the excitement.
 Exception was originally limited to homicide cases

Elements/Analysis
 (1) Declarant is unavailable 804(a)
 (2) Declarant believes he or she is about to die—“a settled hopeless expectation”
o Kinds of evidence the court looks at to make this state of mind
determination:
 Declarant’s statements
 Statements by medical personnel to declarant about her condition
 Actual nature of the injuries
 Actual time between statement and the declarant’s death
 Look at surrounding circumstances – have children come to visit at
bedside
 (3) Statements concern cause of circumstances of declarant’s death
 (4) Offered in civil or criminal homicide prosecution?
o Multipronged approach  Often invoked alongside Excited Utterances
(803(2))
o Dying declaration  exception to Confrontation Clause
o Homicide  rule does not specify that it must be declarant’s homicide

Rule: No settled hopeless expectation.

Shepard v. U.S. (1933)
 Facts: Shepard convicted of murdering his wife; there was a conversation wife
had with nurse while she was on death bed, she said: “Dr. Shepard has poisoned
me.” The nurse also testified that Shepard said she was not going to get well; she
was going to die
 Holding: Inadmissible. There was not “a settled hopeless expectation” and
therefore she did not meet the first element.
 Reasoning: 1) State of mind. When we encountered this case earlier, it did not
meet state of mind exception because it was backwards looking. 2) Dying

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Declaration: Seems to be about cause or circumstances of her death. It’s not

clear that she actually thought she was going to die. Record did not establish
that when she made the statements she had actually believed or accepted she
was going to die.
o There must be a “settled hopeless expectation” that death is near at
hand, not fear or even belief that illness will end in death will be enough
for it to meet dying declaration requirement
o In order to make out a dying declaration, the declarant must have
spoken without hope of recovery and in the shadow of impending death
 See also U.S. v. Sacasas – statement “if anything happens to me tell them that
the Greek had nothing to do with it” was not made following a homicidal attack
and Mahan (declarant) and the Greek had not been prosecuted for a homicide

Michigan v. Bryant
 Two theories: 1) Excited utterance, 2) Dying declaration
 Admitted based on excited utterance exception
 He’s bleeding out on the road talking to the EMTs, why might you pursue
excited utterance vs. dying declaration? EMTs probably were able to establish
that he was excited, might be easier to prove
 To establish dying declaration you have to prove that he thought he was going
to die, but if EMTs are trying to get him to survive…may attempt to seek
admission on both bases

Rule: Dying Declarations are exception to the Confrontation Clause

State v. Lewis (Tenn. 2007)
 Facts: Homicide trial. Defendant involved in robbery gone bad, in which the
store owner was shot. As he was dying and when paramedics arrived, victim
basically said “the lady with the vases” and on further questioning whether the
lady was connected to the robbery, the victim said: “I know she is.”
 Confrontation Clause discussion: statement was testimonial but it was not an
ongoing emergency as defined in Crawford, because it was a past crime. Because
the statements were testimonial, Court looks at whether the should have been
excluded under Crawford
 Holding: The statement, while an expression of opinion and testimonial in
nature, was admissible as a dying declaration; it’s an exception to the
Confrontation Clause
 Note: Bryant dealt with an ongoing emergency, which is what we had in State v.
Lewis, but Bryant was not available as precedent. This might not even be
considered testimonial by today’s standards.

Problem, p. 226–227
 3.48 – Summoned to the scene of a shooting, Officer Rachel Raskin finds the
victim, Eugene Engels, bleeding badly and gasping for breath. Engels tells
Raskin that he was shot by Larry Libby, to prevent him from testifying about a
shooting the previous week. Engels says, “I was with Mike Mallon when he shot
Casey Carleton — that kid on Acorn Avenue. Libby is Mallon’s cousin. They’re
like brothers. Libby thought I might snitch. I told him I wouldn’t. He didn’t trust
me.” Shortly after speaking with Raskin, Engels loses consciousness. Paramedics
take him to the hospital, he is placed on life support. He survives but does not

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regain consciousness. Five months later, Mallon on trial for Carleton’s murder.
Engels is still on life support and still in a coma. Can the prosecutor call Raskinto
testify about what Engels told her.”
o Answer: Rule 804(a)(4): This seems to be an easy case for
unavailability because Engel is still in a coma and unable to testify due
to an infirmity and physical illness — even if he were to be brought to
the courtroom, he couldn’t testify
o Rule 804(b)(2): Engels did not have to actually die for his testimony to
be inadmissible under Rule 804(b)(2) — there must have been an
objectively well settled expectation of: (1) Imminency of Death; and (2)
Loss of Hopefulness, which it seems there was: He was bleeding badly,
Gasping for Breath, In a coma on life-support for five months — pretty
serious
 Homicide case – but not the declarant’s homicide case. The
context limitation is sufficed, because this is in the context of a
homicide prosecution — context is not limited to the homicide
prosecution of the declarant
 Confrontation Clause: In most states, and as shown from dicta
in Crawford, because “Dying Declarations” were exceptions to the
Confrontation Clause at the time of founding, they are exceptions
to the Confrontation Clause even if testimonial
 The Personal Knowledge prong seems to be sufficed as well —
although it’s an opinion, this seems reasonable given his
perception of the circumstances

STATEMENTS AGAINST INTEREST

Introduction
 This exception is different from statements by a party opponent (801(d)(2))
 Rationale: “Indicia of reliability.” We believe this person would not make the
statement unless true because it’s so contrary to person’s interest.

Analysis
 (1) Is declarant unavailable?
 (2) Is the statement contrary to the declarant’s proprietary, pecuniary, legal
interests, or invalidate a claim against someone else?
 (3) Objectively, would the declarant have believed this to be true in making the
statements?
o Was it a boast — undermines credibility because the motive is not to
speak the truth
 Is this a criminal case?
o If yes, is the statement being offered as one that tends to expose the
declarant to criminal liability?
o If yes, are there additional circumstances to corroborate the
statement’s trustworthiness
 Factors
 (1) Independent corroborative evidence outside the
statement itself
 (2) person(s) whom the statement was made

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 (3) Context
 (4) Corroboration of trust matter asserted in statement in
independent circumstance
 If yes, then exception applies
 If no, then exception does not apply

F.R.E. § 804(b)(3) Statements Against Interest

A statement that:
(A) A reasonable person in the declarant’s position would have made only if
the person believed it to be true because, when made, it was so contrary to
the declarant’s proprietary or pecuniary interest or had so great a tendency
to invalidate the declarant’s claim against someone else or to expose the
declarant to civil or criminal liability; and
(B) Is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose

Rule: Against one’s interest if the statement exposes you to criminal liability
U.S. v. Duran Samaniego (11th Cir. 2003)
 Facts: Duran world-winning boxing champ claims his championship belts were
stolen; he says his brother, Iglesias, stole them; belt eventually came into the
hands of Baez who attempted to sell them for $200k; at trial, statements to effect
of “I’m sorry I stole your belts” were permitted into evidence
 Procedure: District Court admitted the statements on the theory of out-of-court
statement which described an existing state of mind or emotion under F.R.E.
803(3)
 Holding: The statement was not properly admitted under 803(3) as a statement
of a then-existing state of mind or emotion; Duran established that Iglesias was
unavailable to testify under 804(a)(5), the statements are admissible under
804(b)(3)
 Reasoning: 803(3): Iglesias statement is admissible to prove the truth of the
matter asserted—that Iglesias felt remorse at the time he made the apologetic
statement (under 803(3))—803(3) is intended to make admissible statements of
condition (I’m scared) vs. beliefs (I’m scared because…); the problem is that the
state of mind exception does not permit the witness to relate any of the
declarant’s statements as to why he held the particular state of mind or what he
might have believed that would have induced the state of mind
o BUT Iglesias statement was used to show not only that he was
remorseful, but also that he had stolen the belts, so court moves on to
804
o 804(a)(5) – Duran used reasonable means to try and get Iglesias to
come to trial, he tried to locate him, but Iglesias lives in Panama and is
not within reach of U.S.’s subpoena power
o 804(b) – court finds that Duran used reasonable means to locate
Iglesias and he was unavailable within meaning of 804(a), thus we move
on to (b). The statements are admissible under 804(b)(3) because it was
a statement against interest. Court says that Iglesias wouldn’t have
made the statements if they weren’t true because it could have exposed
him to criminal or civil liability.

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o So we’re only letting this in for one purpose? Can you still prove the
remorse under 804(b)? I’m sorry sounds like 803(3) and you wanted to
offer as circumstantial proof, but here it’s coming in for “I stol your
belts”
o 803(3) says not to offer the fact remembered or believed
o IN the circumstances, nobody admit to having stolen belts unless they
think it’s true.

Rule: In determining whether a statement is a “Statement Against Interest,” we

go line by line, clause by clause for a statement that is against self-interest—just
because part of a statement qualifies, doesn’t mean that everything that
accompanies it comes in
 A statement within a larger self-inculpatory statement may nevertheless not
qualify
U.S. v. Jackson (2d 2003)
 Facts: Charles J. Jackson is found guilty of importing 5 kilograms or more of
cocaine into the United States; At trial, Jackson sought to admit entire plea
allocution of co-conspirator Brown as exculpatory evidence; specifically Brown’s
statement that Brown never supervised Jackson
 Jackson argues that Brown’s plea allocution should have been admitted under
o Rule 804(b)(1) Former Testimony
o Rule 804(b)(3) Statement Against Interest
 Holding: Inadmissible. Statement itself was not self incriminating.
 Reasoning: Brown is unavailable under Rule 804(a)(1) [availability] by
pleading the 5th Amendment
o Brown’s plea allocution is inadmissible under Rule 804(b)(1) [former
testimony] due to lack of “similar motive.” Here, at the plea, the
government only has to get factual basis for plea. They don’t have the
same motive to challenge.
 Although the Court has recognized that statements from a plea allocution can be
admitted under Rule 804(b)(3) [declaration against interest], such
statements must be self-inculpatory
o Williamson v. United States: “Rule 804(b)(3) does not allow admission
of non-self-inculpatory statements, even if they are made within a
broader narrative that is self-inculpatory statements
o Here, although Brown’s statement about supervising Jackson was part
of an inculpatory plea allocution, the specific statement was not self-
inculpatory. Rather it was more likely self-exculpatory in nature,
because Brown was distancing himself from conspiracy
o Even if the Court were to stray from Williamson’s parsing of testimony,
Jackson failed to satisfy his burden under Rule 804(b)(3)(B) to show
corroboration of trustworthiness
o Brown made conflicting assertions regarding Jackson’s role in the
conspiracy showing lack of trustworthiness
 Roth: This statement isn’t inculpatory, yes it admits working with distributing
drugs, but it also narrows the scope of the criminal operation and was actually
exculpatory

Problems

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 3.49 – Dwight, charged with armed robbery of a bank, seeks to elicit testimony
from Sarah that her husband told her, just before he died of injuries he suffered
in an automobile accident, “I’m not going to make it. There’s something you’ve
got to make right. That stickup job they’re putting on Dwight — it was me” Is
Sarah’s testimony admissible? Does it matter whether some of the money from
the robbery was later found in her husband’s car?
o unavailable under 803(a) because he’s dead;
o 803(b)(2) it’s not a homicide prosecution or a civil case, so it doesn’t
seem like this would come in under 803(b)(2) dying declaration;
o It’s not about the cause or circumstances of his death
o 803(b)(3), we have a declaration against interest; it’s not in Dwight’s
interest and this is supported under (B) by the money being in his car
o Ultimately needs a little more information. The way the problem
is written is him boasting, rather than “I stole your belt”—
genuinely apologizing for something he believed he had done.
 3.50 – As part of its case against Dwight, the prosecution seeks to introduce
testimony from Frank that, while Frank was on a fishing trip with Greg, Greg
boasted of planning a bank robbery and having someone else carry it out. Frank
will further testify that he asked Greg who carried out the robbery, and that Greg
said it was Dwight. Greg cannot now be located. Is the testimony from Frank
admissible? Does it matter whether a large cash deposit was made to Greg’s
bank account on the day after the robbery?
o 804(b)(3)? First part: “I planned a bank robbery” is against interest
o “I got Dwight to carry it out”—is that against interest? No, that’s
inculpatory as to Dwight
o “Getting someone else to carry it out”—yes, without the name
o We do need corroborating circumstances of trustworthiness
 3.51 – Uriah commits suicide and leaves a note explaining, “I can no longer live
with the guilt. Wesley and I killed Vidor.” Is Uriah’s note admissible in a murder
prosecution of Wesley?
o Courts are slit as to whether this falls neatly into dying declarations
o Argument that it’s about the case of his death  the guilt he mentioned
o Do we know if he will follow through on it  could be different category
from homicide
o Who controls timing of death

FORFEITURE BY WRONGDOING

F.R.E. § 804(b)(6) Statement Offered Against a Party That Wrongfully

Caused the Declarant’s Unavailability
(b) The Exceptions. The following are not excluded by the rule against
hearsay if the declarant is unavailable as a witness.
(6) Statement Offered Against a Party that Wrongfully Caused the
Declarant’s Unavailability. A statement offered against a party that
wrongfully caused—or acquiesced in wrongfully causing—the declarant’s
unavailability as a witness, and did so intending that result.

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Rationale
 Based on equity and necessity
 Equitable principle that parties should not benefit from their own bad acts

Difference between 804(a) & 804(b)(6)

 804(a) exceptions do not apply if party can show that the statement’s proponent
caused the declarant’s unavailability
 804(b)(6) statement comes in because opposing party caused the declarant’s
unavailability
 Need intent to cause unavailability (Giles). The mere fact that the party rendered
a declarant unavailable is insufficient—the party must have specifically intended
to deprive the fact-finder of the witness’s testimony. Such wrongdoing includes
murder, bribery, and simple threats
o Prevents party from using the general rule against hearsay as a shield

Rule: Need intent to cause unavailability. To offer evidence under F.R.E. 804(b)
(6), the profferor must show that the opposing party engaged in conduct designed
and with a motive and intent to prevent the declarant from testifying
Giles v. CA (U.S. 2008)
 Facts: Giles fatally shot his ex-girlfriend. Among evidence at trial were
statements ex-gf had made to a police officers responding to a domestic violence
report about three weeks before the shooting. Ex-gf told officers that Giles had
accused her of having affair, choked her, and threatened to kill her. State does
not dispute that statements were testimonial.
 Are these testimonial post-Crawford? Yes. Maybe there was an ongoing
emergency, but court “accepts without deciding” so assuming for purpose of
cases that statements were testimonial. Question is whether there is an
exception to confrontation clause for statements made in these circumstances.
 Holding: Inadmissible. Plainti. Did it create a limited exception to the
Confrontation Clause?
o Yes creating limited exception
o If it meets requirements of 804(b)(6) it will meet CC as well
 Reasoning: Two exceptions to confrontation clause at common law: 1) Dying
declarations (Rule 804(b)(2)) and Forfeiture by Wrongdoing (Rule 804(b)(6))—
exception of allowing hearsay statements when the objecting party (here, Giles)
caused the unavailability of the declarant (in this case, Avie, because Giles
murdered her)
 Court holds that forfeiture by wrongdoing applies only when party
engaged in conduct designed to prevent the witness from testifying
 It is not enough that party caused the witness to be unavailable
 Dissent: Spirit of exception is that someone should not benefit from their own
wrongdoing; we don’t usually insist on intent. If origin of forfeiture by
wrongdoing is that you need to show that person made someone unavailable,
it’s almost asking too much by asking prosecutors to prove that intent

F.R.E. 807: RESIDUAL EXCEPTION

Residual Exception

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 The residual or “catchall” exception to the federal hearsay rule allows the
introduction of certain out-of-court statements that seem reliable and highly
probative but are not “covered” by other exceptions
 This is an exception of las resort. Do not immediately go to 807!
o 801
o 803
o 804
o 806 – impeachment
o 807 – residual
o 803 – balancing
 807 is more demanding. Other hearsay, once you establish elements of the
exception, you just need to show it is relevant. But with 807, under (3) you have
to show that it is more probative.
o (2) – evidence of a material fact. It’s a demanding showing
o The major controversy associated with this exception is the meaning of
“covered”

Analysis
 (1) Is this not admissible under the other exceptions?
o Majority: is there one that it is really close to satisfying?
o Minority: is this sort of statement not addressed in the exceptions?
 (2) Is there circumstantial evidence to show trustworthiness?
 (3) Is the statement offered as evidence of a material fact?
 (4) Is this the best evidence that they can come up with to prove that fact?
 (5) Will admitting it serve the purpose of the federal rules of evidence?
o Want all reliable and relevant evidence to come in
o Want efficient trials
o Want fair trials
o Want to create predictable outcomes
 Circuit Split
o Majority: “Not specifically covered” means statements of the type that
are specifically covered, but do not qualify for Rule 803 or Rule 804
exceptions because they cannot meet all of the requisite elements of the
applicable exception. If the statement was almost covered by a another
rule, then it can come in under F.R.E. 807 (broader, more permissible
than minority)
o Minority: “Not specifically covered” means statements to which
neither 803 or 804 would apply. The residual exception means what it
says—i.e. is applied to those exceptional cases in which an established
exception to the hearsay rule does not apply but in which circumstantial
guarantees of trustworthiness, equivalent to those existing for the
established hearsay exceptions, are present

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F.R.E. § 807
(a) In General. Under the following circumstances, a hearsay statement is not
excluded by the rule against hearsay even if the statement is not specifically
covered by a hearsay exception in Rule 803 or 804
(1) the statement has equivalent circumstantial guarantees of
trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests

Rule: Majority: Evidence that doesn’t come in under 803 or 804 because it
somehow fails, it doesn’t meet one of the elements and is a near miss—then you can
turn to F.R.E. 807
U.S. v. Laster (1933)
 Facts: Chemical company sales records showing sales to meth-making
defendant. Records’ custodian died before trial. P offered them with surrogate
testimony of investigating police officer. P offers them under 803(6) business
records and 807 residual exception.
 Holding: District Court did not err in admitting the statements under the
residual exception of 803(7)
 Reasoning: Court takes the majority view—this was very close to 803(6) and the
rest of 807 was satisfied. District Court improperly admitted evidence under
803(6)—there was no indication that Acquisto was familiar with Wilson’s record-
keeping system, Acquisto did not examine the books nor did he know whether
Wilson had a bookkeeper
 Near-miss business record was at issue here. It failed the business record
exception because there was no qualified witness. They needed either a
custodian of the records or someone familiar with the record-keeping
purposes of the company (803(6)). Owner of the company was dead. Gov
couldn’t find anyone else to play that role, they tried to slip it in through
detective. It looked like a business record, but it failed because there was no
custodian. Hence the temptation to offer it under 807.
 Dissent: 807 should not provide an end-run around 803 and 804 (minority
approach). It must be something outside of what the rule addresses.

Boyce, p. 244
 Policy – Judge Posner says forget about what dissent said in Laster – let’s
get rid of 803 and 804 and replace with 807. Let a judge decide if hearsay
should come in by looking at it with more rigorous standard. Allowing hearsay
when it’s worth it and has guarantees of trustworthiness

SEE HEARSAY REVIEW PROBLEMS DOC

HEARSAY AND DUE PROCESS

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Introduction
 Constitution places two significant restraints on hearsay:
 1) Confrontation Clause of Sixth Amendment (made applicable to the
states through the Due Process Clause of Fourteenth Amendment)
 2) Due Process Clauses of the Fifth and Fourteenth Amendments —
SCOTUS has held that due process can require the admission of some
evidence offered by a criminal defendant, even if the hearsay rule would
otherwise prohibit it

Rule: Due Process may require the admission of some evidence offered by
criminal defendant even if the hearsay rule (or other rules of evidence) would
otherwise prohibit the use of the statements
Chambers v. Mississippi (U.S. 1971)
 Facts: Chambers convicted of murdering policeman. Officers showed up to
bar to execute warrant. Fights broke out. Liberty (one of officers) was shot.
Before he died—he shot at members of crowd, including Chambers. Autopsy
showed Liberty was shot with .22-caliber revolver. 3rd party McDonald
confesses to crime multiple times, swears it was voluntary, and then later
revokes confession.
 Defenses’ theory: 1) he did not shoot liberty, 2) McDonald shot him.
Chambers called McDonald’s to the stand. He is able to get in the prior sworn
statement as an inconsistent statement but then he also wants to ask him
about statements he made, and he is not allowed to do that because Miss had
rule that you can’t impeach your own witness
 Holding: Exclusion of the critical evidence was in violation of Due Process.
The exclusion, coupled with the State’s refusal to permit Chambers to cross
examine McDonald, dined him a trial in accord with traditional and
fundamental standards of due process
 Reasoning: Due Process Trump Card: Concern about the outcome of this
case and totality of the evidence that was excluded, but also a judgement
about the Mississippi rules of evidence. When we have wrong or arbitrary
rules of evidence, that as applied to the case at hand, will invoke the DP
clause
o Statement against interest under FRE? Mississippi was limited to
pecuniary interests.
o Chambers would have had to show that it was a) against interest, b)
corroborating circumstances because it is being offered in a criminal
case, we need to show corroborating circumstances that show its
trustworthiness (FRE 804(b)(3))
 Chambers was effectively prevented from exploring the circumstances of
McDonald’s three prior oral confessions and from challenging the
renunciation of the written confession. Hearsay statements involved are
reliable:
o 1) they were made to close acquaintances shortly after the murder
occurred,
o 2) each one was corroborated by other evidence in the case,

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o 3) statements were against Donald’s interest. He stood to benefit

nothing from them
o 4) if there was any doubt about their truthfulness, McDonald was in
the courtroom and under oath. He could have been crossed by State,
and his responses weighed by the jury
 “Few rights are more fundamental than that of an accused to present
witnesses in his own defense.”
 Roth: Court made it clear that they produced no new constitutional law in
this case, this is highly fact specific circumstance of error correction by the
SCOTUS
o If what is being excluded seems reliable, that seems to be a due
process violation

Rule: In order to come within the purview of Chambers, it must be an egregious

outcome—a correction combined with an application of the evidence rules in the
jurisdiction that strike the court as ill founded
Fortini v. Murphy (1st Cir. 2001)
 Facts: Fortini convicted of second-degree murder. He is appealing his denial
of writ of habeas corpus. Fortini argued self defense. Evidence in issue was
defendant offering direct testimony on the pertinent issue—whether Monterio
lunged at him
 Holding: Court says it was an error to exclude, but NOT a constitutional
error
 Reasoning: The exclusion of the direct testimony does not “rise to the level
of Chambers.” Chambers involved highly probative evidence absolutely
critical to the case. Court cites Chambers as an extreme example, stating
that it has been difficult to predict the evolution of Chambers because it has
only been used to overturn the Court in a select number of cases.
o Court says that this additional direct testimony does not add much
more to the case
o Fortini’s direct testimony spoke to whether Monterio lunged at him

HEARSAY EXAM STRATEGY CHECKLIST

FINISH – page 118 Acing
(1) Is the statement hearsay?
a. Is it a statement?
b. Was the statement made by a human declarant?
c. Hearsay is an out of court statement offered to prove the truth of matter
asserted in the statement
d. Is the statement being offered for some other purpose, other than truth of
what is asserted?
(2) Does the statement fit under an 801(d) exception?
a. Declarant must be available and subject to cross examination!
b. 801(d)(1)(A) – prior inconsistent statements
c. 801(d)(1)(B) – opposing party’s statement
i. Individual or representative capacity?
ii. Is one the party manifested or adopted?

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iii. Made by a person the party authorized to make a statement on the

subject matter?
iv. Was made by party’s agent or employee on matter w/in scope of
relationship while existed
v. Made by party’s co-conspirator? (Bruton)
(3) Does the statement fit under an 803 exception?
a. (1) Present sense impression
b. (2) Excited utterance
c. (3) State of Mind
d. (5) Refreshed recollection, past recollection recorded
e. (6) Business Records
f. (7) Absence of Record
g. (8) Public Records
(4) Does the statement fit under an 804 exception?
a. Declarant must be unavailable to apply these exceptions!
b. Former testimony: Did the unavailable declarant make a formal
statement under oath, subject to cross, in deposition or other proceeding?
i. If yes, go to c
ii. If no, the statement cannot fit in under 804(b)(1)
iii. Did the party against whom the testimony was offered have a similar
motive and opportunity to cross examine the declarant?
iv. Is this a civil case?
1. If yes, the statement is admissible for its truth under former
testimony exception
v. Is this a criminal case?
1. We need exact identities for this to come in under former
testimony exception
c. Dying declaration: Did the unavailable declarant believe her death was
imminent?
i. Does the statement concern the events that led to the declarant’s
belief she was drying?
ii. Is the case a homicide or civil case?
iii. Exception to CC
d. Statements against interest: Did the unavailable declarant knowingly
make a statement so contrary to her financial, property, tort, contract, or
penal interests that no one would say sch a thing unless it was true?
i. Criminal case?
ii. Need corroboration of trustworthiness
iii. CC issue?
e. Forfeiture by wrongdoing: Did the party against whom the unavailable
declarant’s statement is offered intentionally render the declarant
unavailable or acquiesce in the conduct of another to make the declarant
unavailable?
(5) Does the statement fall under 807 residual exception?
a. Majority: (Lester)
b. Minority:
(6) Conduct 403 balancing test
a.
(7) Make alternative argument

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a. This is not hearsay at all, your Honor, because I’m not offering the out-of-
court statement for its truth. However, even if it were hearsay, it would fall
under the following exceptions…”

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IV. CHARACTER EVIDENCE

A. THE BASIC RULE AND ITS EXCEPTIONS

Introduction:
 Like the hearsay rule, the character evidence rule depends in its application on
the purpose for which the challenged evidence is offered.
 Basic rule: longstanding principle prohibits proving a person’s character to
support an interference that the person acted in conformity with his character on
a particular occasion (propensity inference). However, when it is offered for
some other purpose we permit it.
 Rationale: Unfair prejudice, undue influence on the jury
 Most character evidence is inadmissible, however there are four categories of
exceptions (we care about)
o (1) Defendant offering evidence of defendant’s pertinent trait in criminal
case (404(a)(2)(A))
o (2) Defendant may offer evidence of victim’s pertinent trait (404(a)(2)(B)
o (3) Impeachment of a witness for truthfulness, which is available in civil
and criminal (608); and
o (4) Impeachment of a witness by evidence of the witness’s criminal
conviction, which is available in both civil and criminal cases (609)

F.R.E. § 404 Character Evidence.

(a) Character Evidence
(1) Prohibited Uses. Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance
with the character or train.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trial, and if
the evidence is admitted, the prosecutor may offer evidence to rebut it
(B) subject to the limitations in Rule 412, a defendant may offer evidence
of an alleged victim’s pertinent trait and it the evidence is admitted, the
prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged
victim’s trait of peacefulness to rebut evidence that the victim was the first
aggressor
(3) Exceptions for a Witness. Evidence of a witness’ character may be
admitted under Rules 607, 608, and 609
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
On request by a defendant in a criminal96 case, the prosecutor must:
 EVIDENCE OUTLINE—PROFESSOR ROTH—MGG

Basic Rules and Exceptions

 404(a)(1) — Pertinent trait. can’t introduce evidence about traits to show
that someone is known to be a violent person or prove that they acted
violently, for example
 404(a)(2) — defendant can offer evidence of her own pertinent trait; you’re
asking the jury to make a propensity inferences. You are an honest person
as the character witness has testified. If the defense wants to open the door to
the inference, they can (this is risky, because it permits prosecution to walk
through the same door).
o 404(a)(2)(A) — If the defense opens this door, the prosecution may
rebut it
 404(b)(1) — Specific Act. You cannot put on evidence that person engaged in
a specific act, such as a fight
 404(b)(2) — permissible uses for “another purpose”

F.R.E. 404(a)(1) & 404(a)(2)(A)

Rule: Character is not an issue in a criminal prosecution unless the defendant
chooses to make it one.
People v. Zackowitz (N.Y. 1930)
 Facts: Defendant was enraged that some dudes heckled his wife. When they got
home, the wife told him that the dudes had called her a whore and propositioned
her. He grabbed a gun, went back, got and a fight and a guy was killed. He had
other guns at home. The State entered these items into evidence, upon which the
DA told the jury that “possession of the weapons characterized the defendant as
a ‘desperate type of criminal’ a ‘person criminally inclined’”
 Holding: Not admissible. Character evidence is never an issue in a criminal
prosecution unless the defendant chooses to make it one.
 Reasoning: The exclusion of allowing prosecution to bring character evidence of
a criminal defendant is one of policy—the law is not blind to the dangers of
allowing such character evidence in when the defendant is innocent. Forbidden
propensity inference — allowing the evidence in makes the jury think: he
collected all these guns, which was consistent with his violent character,
therefore he would be more likely to deliberately kill a person as opposed to only
kill when provoked
o F.R.E. 404(b)(1) — introduction of having acquired guns is not
permitted to show that he had a propensity of violence
 Another route: If the prosecution had been able to tie guns to plan of killing
victim, without going through character…prosecution could have tried to show
that he had amassed an arsenal to get ready for this killing, that would make it
relevant in a way that wouldn’t to through propensity of character but get at his
planning of the killing (F.R.E. 404(b)(2))
 Roth: The guns here had nothing to do with the crime. If these guns were used
for the crime, it would go to the intent element, would be allowable as character
evidence.

Rule: In addition to the exceptions enumerated in 404(a)(2) and 404(b)(2),

character evidence is permissible when the evidence is not offered to prove that a

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person acted in accordance with the character, but the evidence is relevant for
some other purpose
Cleghorn v. NY (N.Y. 1874)
 Facts: Drunk switchman caused accident. Plaintiff offered evidence of drinking
habit to show employer had notice of the drinking problem.
 Holding: Evidence was competent in this instance on the question of gross
negligence on the part of the defendant in employing or continuing the
employment of a subordinate known to be unfit for his position by reason of
intoxication
 This is being offered to show notice, not that he was drunk on a particular
occasion (i.e. not in violation of 404(a)(a), we would need a limiting instruction

Character “in issue”

 Berryhill v. Berryhill
 Larson v. Klapprodt
 Character in issue vs. putting character at issue
o In Issue – the above instances where it is part of proving a claim at
hand
o At Issue – when defense opens the door

Rule: Character in issue. If character reputation becomes a matter in issue in a

civil suit, evidence with reference to such a party’s reputation or character is
admissible.
Berryhill v. Berryhill (Ala. 1982)
 Facts: Custody proceeding. Dad was asked if he had ever killed anyone.
 Holding: Admissible. Since character is in issue in this child custody proceeding,
evidence offered to shed light on the fitness of a parent is admissible
 Reasoning: When the inquiry involves analyzing the character of someone, i.e. a
parent, the judge is trying to determine which parent the child will reside with,
the inquiry involves analyzing the character of someone

Rule: Character in issue. Evidence of reputation or past misdeeds is admissible in

establishing truth when damage to reputation is part of a claim
Larson v. Klapprodt (S.D. 1975)
 Facts: Slander action. Defendant, in counterclaim, alleged that plaintiff
slandered him by calling him sexually promiscuous and was drinking to excess
 The slandered person, their character as to this particular trait or two traits are
now in issue. Those are squarely before the finder of fact, so both parties get to
offer evidence of those traits

Problems
 4.1 – A criminal defendant charged with heroin trafficking admits selling heroin
to an undercover agent but claims to have been entrapped. Under federal law the
defense of entrapment is unavailable to a defendant who was predisposed to
commit the offense. The government seeks to call a rebuttal witness who will
describe buying heroin from the defendant a month before the undercover
purchase. Is the testimony barred by F.R.E. 404(a)?
o Answer: Character in issue. This is a rare circumstance where
character is in issue. Defendant has put it in issue by saying he was

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entrapped. Because of the nature of the defense, it can be offered.

F.R.E. 404(a)(2)
 4.2 – A civil defendant, sued in federal court for wrongful death, claims he shot
the victim in self-defense. In order to support his testimony that the victim
attacked him, may the defendant introduce evidence that the victim had an
explosive temper? In order to support his testimony that he reasonably feared for
his life, may the defendant introduce evidence that the victim had a reputation
for brutality?
o Answer: Can’t offer evidence of victim’s temper in civil case. 404(a)(2)
 4.3 – A criminal defendant charged with murder testifies that he shot the victim
only after the victim lunged at him with a knife. May the prosecution introduce
evidence of the victim’s peaceful character? May the prosecution introduce
evidence of the defendant’s violent character
o 1) F.R.E. 404(a)(2)(B) defendant may offer evidence of alleged
victim’s pertinent trait
o Under F.R.E. 404(a)(2)(C) – the prosecutor may offer evidence of an
alleged victim’s trait of peacefulness to rebut evidence that the victim
was the first aggressor
o Couldn’t resort to © if wasn’t a homicide
 4.4 – A criminal defendant charged with murder claims self defense and
introduces evidence that the victim was prone to violence. May the prosecution
introduce evidence of the victim’s peaceful character. May the prosecution
introduce evidence of the defendant’s violent character.
o Victim’s character – yes, the prosecution is permitted to rebut the
defendant’s character evidence of the victim under 404(a)(2)(B)(i)
o Defendant’s character – since the defendant has offered evidence of
his character under 404(a)(2)(A), the prosecution may offer evidence
of defendant’s violent character
 4.5 – In an extortion prosecution, the government proves that the defendant
made vaguely menacing statements to the victim. In order to show that the
defendant intended the statements as threats of physical harm, and that the
statements put the victim in reasonable fear of his safety, may the government
prove the defendant has a well-known proclivity toward violence?
o Answer: Defense has not put character at issue. This is outside F.R.E.
404, because it is not offering evidence of a person’s character to prove
action in conformity therewith. It’s more like Cleghorn (where it was
important in terms of showing notice on behalf of Railroad – character
was in issue there)
o Rule 404(a) prohibits character evidence for the purpose of proving
that the person whom the evidence was offered against acted in
accordance with his or her character trait on the given occasion — only
in a criminal proceeding, may a defendant seek to pierce that bar
through one of the exceptions under Rule 404(a)(2) — none apply
here; however
o Rule 404(a) does not apply when character evidence is offered for
some purpose other than to show that the party whom the evidence was
offered against acted in accordance with said trait — when a
permissible purpose can be identified, it is admissible

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o Here, evidence is admissible both to prove that (1) Defendant’s intent to

threaten physical harm; and (2) Victim’s state of mind of reasonable
fear, because “reasonableness of fear” is an essential element of an
extortion offense

B. METHODS OF PROVING CHARACTER

F.R.E. § 405 Methods of Proving Character.

(A) By Reputation or Opinion. When evidence of a person’s character or
character trait is admissible, it may be proved by:
 Testimony about the person’s reputation; or
 Be testimony in the form of an opinion.
 On cross-examination of the character witness, the court may allow an inquiry
into relevant specific instances of the person’s conduct. [these are when we
are under 404(a) exceptions]
(B) By Specific Instances of Conduct. When a person’s character or character
train is an essential element of a charge, claim, or defense, the character or trait
may also be proved by relevant specific instances of the person’s conduct. [these

F.R.E. 405 Methods of Proving Character

 When we’re within one of the exceptions carved out in F.R.E. 404, we’re
limited in how we can prove character. We’re limited to testimony in opinion
about one’s character (405(a))
 405(a) — when character is put at issue—how you can offer evidence is more
limited. Someone will take stand and say,
o Procedure: “I have known the defendant for 10 years and in my
opinion of this person that he is an honest person.”
o Addresses cases under 404(a)(2) exceptions
 405(b) — broader way of proving character through specific instances of
conduct
o Falls outside 404 because they are not using character as
circumstantial proof of conduct on a particular occasion.

Rule: Opens the door. When a defendant elects to initiate a character inquiry, a
witness is not allowed to base his testimony on anything but hearsay (opinion or
reputation evidence) and subjects himself to examination by opposing council. The
jury is then being asked to assess the witness’ judgement/standard of knowledge.
Michelson v. U.S. (U.S. 1948)
 Facts: Michelson (defendant) was charged with bribing a federal revenue agent.
At trial, Michelson’s counsel called 5 witnesses to attempt to prove that
Michelson had a good reputation in community. On cross, the prosecution asked
4 of those witnesses if they ever heard that Michelson was arrested for receiving
stolen goods. He admits to having the money, claims it was done in response to
entrapment, question really turns on if jury believes the defendant or the agent.
Michelson appealed on the grounds that the prosecution was incorrectly
permitted to cross examine the witnesses about the prior arrest.

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 Holding: The cross examination of the defendant’s witnesses is exactly the type
of method F.R.E. 405 authorizes
 Reasoning: Witnesses may only testify as to what he has heard in the
community, although it may be said by persons less qualified to judge than
himself. The evidence which the law permits is not as to the personality of the
defendant, but only as to the shadow of his daily life cast in his
neighborhood, or general repute. The price a defendant must pay for
attempting to prove his good name is to throw open the entire subject which the
law has kept closed for his benefit
 In turn, the prosecution may either:
o Call it’s own extrinsic, contradictory witnesses limited in the same way
as the defendant’s character witnesses; or
o Cross-Examine the defendant’s character witnesses with either
 Relevant specific inquiries of the defendant’s conduct’ or
 Inquiry about the person’s reputation
 Footnote 16, p. 272: “A classic example in the books is a character witness in a
trial for murder. She testified that she grew up with defendant, knew his
reputation for peace and quiet, and that it was good. On cross, she was asked if
she had heard that the defendant had shot anybody, and, if so, how many. She
answered, “three of four,” and gave the names…She still insisted, however, that
he was of “good character.” Jury is to use Q&A to assess her judgement of
what it means to be a peaceful or violent person. Jury is judging the
character witness’ standard and knowledge of the defendant about whom they
are testifying.

Rule: Open the door.

Government of the Virgin Islands v. Roldan (3rd Cir. 1979)
 Facts: Murder trial. Wife testified that her husband never bothered anyone.
Prosecution on cross asked if she knew whether her husband had been convicted
of murder before. Wife responded that she knew but maintained her opinion.
 Holding: Admissible. Defendant opened the door.

Rule: In inquiring about the specific instances of conduct, the Prosecutor must have
a good faith belief in the propriety of its foundation.
U.S. v. Krapp (8th Cir. 1987)
 Facts: Krapp charged with counts of making false entries with intent to defraud
U.S. She was a postmaster at a U.S. post officer and was making false entries
with regards to stamp inventory. Krapp presented character witness who
testified that Krapp had a reputation as “an honest, trustworthy person.” The
prosecution asked the witness if she knew that Krapp’s husband omitted cash
income on their tax returns. Krapp’s attorney moved for a new trial on basis that
question was improper and prejudiced the jury
 Holding: The court finds no abuse of discretion by the trial judge in failing to
grant a mistrial, but says it was wrong for the AUSA to ask about Krapp’s tax
returns in front of the jury without first raising the matter with the trial judge,
and the question is only probative if she has some knowledge of it
o There must be a good faith basis that she actually had some knowledge
of this
o It’s only probative if she had some knowledge of it

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F.R.E. 803(21)
 Reputation Concerning Character. A reputation among a person’s
associates or in the community concerning the person’s character.

Fortini v. Murphy (1st Cir. 2001)

 Facts: Fortini convicted of second-degree murder. He is appealing his denial
of writ of habeas corpus. Fortini argued self defense. Evidence in issue was
defendant offering direct testimony on the pertinent issue—whether Monterio
lunged at him
 Appellate court acknowledges that this should have been admitted
under 404(b)(2)
 If you were representing Fortini and you could get in evidence about fight,
how would you use it? Monterio was in state of mind where he was lunging
for people and in attack mode, he was aggressive. Not that he was an
aggressive person, but on that day he was primed to attack. Therefore, makes
it more probable that he did what he did if you can bring in this prior act.

Rule: Evidence of good conduct is not admissible to negate criminal intent. Rule
405(b) has a congruence to it—Just as the Prosecution cannot offer specific
instances of good conduct, neither can the Defense offer specific instances to prove
good character
U.S. v. Setien (11th Cir. 1991)
 Facts: Luis Setien and four other employees of Eastern Airlines were convicted
of conspiracy to import cocaine. Setien called character witness Mermelstein to
prove that Setien lacked criminal intent. Marmelstein testified that he was a
high-level importer and distributor of cocaine throughout the US. He had offered
Setien the lure of easy money if he would quit his job and just “hang around”
Marmelstein while he conducted his Narcotics business. In response,
Marmelsteinn testified that Setien stated that he refused to involve himself in the
narcotics business and repeatedly reminded Marmelstein of the damage he was
doing to society
 Holding: Evidence of specific instances of good conduct or acts is inadmissible
to negate criminal intent under Rule 404(b) or 405(b)
o Marmelstein’s proferred testimony was merely an attempt to portray
Setien as a good character through the use of prior good acts

Rule: F.R.E. 405 limits the form of character evidence. Character evidence may be
introduced in the form of opinion or reputation testimony. Specific instances of the
defendant’s character, may only be introduced if that character is “an essential
element of a charge, claim, or defense.”
U.S. v. Ford (7th Cir. 2013)
 Facts: Ford and other convicted of wire fraud. Ford argues that she should have
been allowed to testify about her cooperation with FBI as evidence of her law-
abiding character.

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 Holding: Court finds no abuse of discretion in the district court’s exclusion of

the testimony
 Reasoning: Ford’s law-abidingness is not an essential element of a wire fraud
charge

Problems
 4.6 – May a criminal defendant charged with tax evasion call his sister to testify
that she thinks the defendant is thoroughly honest?
o Answer: 404(a)(2)(A) defendant is allowed to offer evidence of his
personal trait. And under 405(a) it is permitted because it is by opinion
of the sister.
o May he call a neighbor to testify that he has a reputation as ethical and
law-abiding? Answer: 404(a)(2)(A) same reasoning as above, and
under 405(a) by reputation or opinion of the sister.
o May he call a police officer to testify that the defendant turned in an
expensive watch he found on the street? Answer: 405(b) this is not an
“essential element of the charge” so likely not; this is what 405 says you
cannot do.
o May the defendant himself testify about turning the watch in? Answer:
generally this is not allowed. Under 404(b) – defendant is attempting to
use a prior act to prove evidence of character.
 4.7 – A criminal defendant charged with murder calls his minister who testifies
that the defendant is gentle and wouldn’t hurt anyone. Can the prosecution call a
rebuttal witness who will testify that the defendant attacked him in a
supermarket checkout line, a year before the killing?
o Answer: No, this is a specific act. 405(a) permits prosecution to ask
same witness questions about defendant’s character, or on cross inquire
into specific instances of person’s conduct
o Can the prosecutor ask the minister on cross examination “Are you
aware the defendant attacked someone in the supermarket checkout
line?” Answer: Yes, per 405(a), “on cross examination of the character
witness, the court may allow an inquiry into relevant specific instances
of the person’s conduct.” Prosecution must have a good faith belief that
it happened before they ask.
o Does it make any difference that it was asked “are you aware” vs. “have
you heard”?
o Opinion vs. reputation
 Have you heard – reputation
 Are you aware – opinion
 4.8 – Henry was acquitted in 1859 of murder of his mistress, Sophie Werner.
Henry claimed Werner killed herself and he “offered testimony of witnesses
suggesting that Sophie had suicidal tendencies and had earlier attempted suicide
several times.” Should this evidence have been admitted?
o Answer: Yes, under 404(a)(2)(B) “suicidal tendencies” should have
been permitted but maybe not “attempted suicide”
o What becomes trickier are the specific instances of when she committed
suicide
o 404(b)(2) – specific instances may not be admissible

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o 404(a) talking about what defendant can offer, it’s limited to character
trait “suicidal”
o When we get to specific acts, we need to move to 404(b)(2) and it
seems like this is trying to show she tried to kill herself on the occasion
in question
o What if the testimony is that she “tried to commit suicide the day before
the day she actually died.”
o If it can be shown that she attempted suicide so close to when she was
allegedly killed, it could be admissible under 404(b)(2)
 404(b)(2) can be applied to anyone, gov often uses 404(b)(2) to
prove up a permissible purpose
 404(a) not helping us, we need to move to 404(b)(2) and
see if we can satisfy it—the way in Fortini he could have
used it
 Always end up at 403 balancing test, taking into account
the probative value and risk that jury will engage in
forbidden inference

OTHER PERMISSIBLE USES OF SPECIFIC CONDUCT

Permissible Purposes
 Permissible Purposes: F.R.E. 404(b)(2)
 We have seen that evidence of a defendant’s character is generally
inadmissible to prove his or her conduct in conformity with that character,
unless the defendant chose to place his or her character in controversy
 If the defendant chooses to open that door, his or her character generally
must be proved with opinion or reputation evidence, not with evidence of his
or her conduct on other specific occasions
 404(b) is hotly debated. Some scholars argue that you cannot read (a) and (b)
as separate because “both describe evidence offered on a propensity theory.”
(Rothstein)
 404(b) allows creative lawyers to offer character evidence for ANOTHER
purpose such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, lack of accident
Analysis
 (1) 404(a) then (b). When 404(a) is not helping us, we move to 404(b)(2)
and see if we can satisfy it
 (2) Other than Character. Is the extrinsic evidence relevant to an issue
other than the defendant’s character? AND
o When making an argument under 404(b)(2) we are not making a
propensity argument of character, we are making an argument on their
intent/motive/lack of accident etc.
o Intent (Beechum)
o Motive (Boyd)
o Identity (Dossey)
o Opportunity (DeJohn)
o Preparation (Lewis)
o Modus Operandi (Crocker, Dossey)

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 (3) Probative. Does the evidence possess probative value that is not
substantially outweighed by its undue prejudice?
 (4) Believable. Is the relevant evidence believable by a rational jury
(Huddleston)?
o Don’t have to prove them
o Bootstrapping allowed
 (5) Notice. Prosecutor must provide reasonable notice and do so before trial.
(404(b)(2)(A))
o We want to give defendant opportunity to think about whether it
happened
 (6) Limiting Instruction. Assuming prosecutor has complied with notice
requirement—and articulated a permissible purpose—what type of limiting
instruction do you seek?
o Cannot be used to prove up their character or an inference through
character in order to show that on a particular occasion defendant
acted in conformance with that character trait
o “Ladies and gentleman, you’ve heard defendant committed other
acts…you are to use that evidence solely for purpose of: intent
(example)… you may not use it for an inference on this person’s
character or propensities.”
 (7) Always end up at the 403 balancing test, taking into account the probative
value and risk that jury will engage in forbidden inference. Court has to weigh
the probative value. Court is thinking what the relevant evidence is and
weighing the relevancy against the danger of undue prejudice—mainly that
the jury will use the evidence for its impermissible instruction and how likely
it is they will be able to follow the instruction.

Rule: Intent. Evidence of a crime, wrong, or other act is admissible for purpose of
proving motive, opportunity, intent, plan, knowledge…
U.S. v. Beechum (5th Cir. 1978)
 Facts: Beechum, letter carrier for the U.S. Postal service, was charged with
robbing the mail when he was found with a rare silver coin. Beechum claims he
was planning on returning it.
 Evidence: Prosecution introduced credit cards that Beechum had in his wallet
that also been taken from the mail.
 Holding: Beechum’s possession of unlawfully held credit cards is admissible
under Rule 404(b) for the permissible purpose of proving Beechum had intent
not to return silver dollar in case at hand
 Reasoning: Extrinsic evidence was offered to prove that defendant had intent,
because the credit card made it more likely that Beechum knew that he was
engaging in illegal conduct when he took things from the mail. 403 – the
evidence’s probative value was not substantially outweighed by risk of undue
prejudice

Rule: Motive. Under 404(b), the proper question is whether such evidence has the
potential to cause undue prejudice, and if so, whether the danger of such undue
prejudice substantially outweighs its probative value.
U.S. v. Boyd (4th Cir. 1995)

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 Facts: Drug charge. Prosecution offered evidence of Boy’s drug habit on theory
that he participated in the ring to finance his drug habit.
 Holding: Permissible purpose. Evidence about drug use admissible
 Reasoning: 403 – Evidence of Boyd’s personal use did not involve conduct any
more sensational than the crimes which were tried, so it satisfies balancing test

Rule: Opportunity. Evidence of prior acts is admissible to prove opportunity.

U.S. v. DeJohn (7th Cir. 1981)
 Facts: Defendant convicting of forging checks. The Government admitted
testimony by a YMCA security guard and testimony of a Chicago Police officer to
prove opportunity. Security Guard testified that he arrested DeJohn when he
found him behind a reception desk at the YMCA. PO testified that in the course of
searching DeJohn, DeJohn had checks on him, made out to someone else. PO
testified that DeJohn stated that the checks were obtained from a mailbox behind
the reception desk at the YMCA and was holding them for safekeeping
 Holding: Permissible purpose – offered to show defendant’s opportunity to gain
access to the checks.

Rule: Preparation. Evidence of prior burglary permitted to show how the

defendant got the tools he needed to commit the crime that he was on trial for.
Lewis v. U.S. (10th Cir. 1985)
 Facts: Defendant convicted of burglary of post office and argues that testimony
that he participated in a garage store burglary earlier in the evening should not
have been admitted
 Holding: Evidence of defendant’s participation in a burglary at a garage store
several hours before post office burglary falls squarely within 404(b) as
establishing defendant’s plan and intent
o The evidence was especially probative because defendant purportedly
took equipment needed for the post office burglary
o Closer in time the events are, better shot one has at showing it is
relevant for a permissible purpose

Rule: Knowledge. If prior act is very similar to the one defendant is on trial for,
evidence about that prior crime could be admissible to show modus operandi.
U.S. v. Crocker (5th Cir. 1986)
 Facts: Defendant convicted of conspiring to commit bank theft. He challenges
admission of evidence related to his 1988 arrest
 Holding: Evidence of prior arrest was admissible because “knowingly”
participating in a conspiracy is a crucial element of the crime; the fact that
defendant had been arrested before with co-conspirator while in a car, with
counterfeit checks, was highly probative of his knowledge that co conspirator’s
checks and trips to banks were for an illicit purpose

Rule: Identity. Evidence of defendant’s participation in prior armed bank

robberies, proof of modus operandi
U.S. v. Dossey (8th Cir. 1977)
 Facts: Dossey was convicted of armed bank robbery. Government called several
witnesses to testify against Dossey. Bank Teller in Little Rock testified that she
was approached by a young white female, who produced a pistol and demanded

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money. Testified that the robber was dressed in a blue plaid shirt, blue jeans and
wore rose colored, wire framed glasses. She described the robber as 22–23,
between 115– 120 pounds, and blonde. Ann Louis Jagow testified that she, along
with Dossey and Weaver, and others, planned and executed a bank robbery in
Mesa, Arizona, in which Dossey wore a blonde wig, a blue t-shirt, along with
pinkish-tinted wire framed glasses
 Dossey claims that it was error pursuant to Rule 404(b)(1) to admit Jagow’s
testimony of the robbery in Arizona
 Holding: Evidence of the Arizona Robbery is admissible to prove identification
or modus operandi pursuant to Rule 404(b)(2)
 Reasoning: The inability of anyone to ID Dossey in the Little Bank Robbery
made the issue of identification and modus operandi critical in the case. The
Government’s evidence shows a similarity in the modus operandi of the two
crimes that is substantial: Same disguise, Same clothing, Close in time. The
substantial probative value of the evidence was not substantially outweighed by
any risk of unfair prejudice under Rule 403

Rule: Inadmissible. The use of evidence of other crimes to establish a propensity

to commit he type of crime charged is the use of such evidence that Rule 404(b)
forbids.
U.S. v. Wright (7th Cir. 1990)
 Facts: Wright found guilty of distributing cocaine and within 1,000 feet of
school. Defendant claimed it was not him selling the drugs by school.
Government offered wiretap call in which he bragged to woman about being a
drug dealer.
 Trial court: admitted the wiretapped conversation to establish identity and
intent
 Holding: Inadmissible. There is no inference to be made to link the recording
with the crime except character. Posner does not buy the argument that this was
offered to show identity.

Rule: Possession conviction is inadmissible to prove intent to distribute (Third,

Fifth, Sixth, Seventh, Eight, Ninth, Eleventh Circuits)
U.S. v. Davis (3rd Cir. 2013)
 Facts: Davis convicted of possession with intent to distribute. Government has
evidence that he has two prior convictions. District court: Admitted prior
convictions of possession of cocaine as relevant to knowledge
 Government argues: defendant’s participation in a cocaine distribution
conspiracy admissible in possession trial to prove knowledge of heroin. This case
is different, however, to the case at hand. Drug dealers have more knowledge of
drugs in general. Whereas a possession conviction does not imply a similar level
of knowledge
 Holding: Davis’ prior convictions should have been inadmissible
 Reasoning: “We acknowledge that some of our cases admitting prior criminal
acts under F.R.E. 404(b) have been expansive. But our expansiveness is finite,
and this case crosses the line…” In these cases, there is a bigger danger that
jurors will infer that defendant’s character made him more likely to sell the drugs
in his possession, which is exactly the type of inference 404(b) forbids

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o Possession and distribution are distinct acts. “A prior conviction for

possessing drugs by no means suggests that the defendant intends to
distribute them in the future.”

Requisite Proof
 Assuming 404(b) and 403 are satisfied, what threshold showing must be made to
establish that the other acts occurred and the defendant participated in them?

Rule: Conditional relevancy is threshold level—Offense offered for permissible

purpose must be believable by a rational jury (104(b) determination). Bootstrapping
permitted.
Huddleston v. U.S. (U.S. 1988)
 Facts: Trial for selling stolen tapes. Prosecution also offered evidence of past
sales of stolen items under 404(b) to go towards knowledge (since defendant
claimed he was unaware items were stolen). Defendant argues that prosecution
did not sufficiently prove that the prior transaction in fact occurred.
 Defendant argues: judge should make decision under 104(a) and that these
acts should be considered in isolation. Prosecution is showing cumulatively —
bootstrapping!
 Issue: Whether the district court must itself make a preliminary finding that the
government has proved “other act” by a preponderance of the evidence before it
submits evidence to the jury?
 Holding: No, F.R.E. 404(b) does not require the district court to make a
preliminary finding as to whether the government has proved the “other act” by
a preponderance of the evidence before it submits evidence to the jury—court
simply must examine the other evidence and admit it if a rational jury
could find the conditional fact true by a preponderance of the evidence
 Reasoning: Court says it can be all the evidence taken together that will
persuade the jury ultimately that each one is not an accident, it is the cumulative
value.

Problems
 4.9 – On June 30, 1915, George Joseph Smith was convicted in London of
murdering Bessie Mundy. Three years earlier, Mundy had married Smith (who
unbeknownst to her was already married), had executed a will leaving him all
her property, and then drowned in her bath. Smith claimed the drowning had
been accidental, but at trial the prosecution proved that, following Mundy’s
death, two other women had died in their bathtubs after going through
marriage ceremonies with Smith and making out wills in his favor. The
introduction of this evidence was the principal issue on appeal. Would the
evidence of the other deaths be admissible under the Federal Rules of
Evidence?
o Answer: He could be the “bathtub killer” so it could come in under
404(b)(2) for modus operandi. Also could come in under lack of
accident. Can the court consider all three deaths, or does court have to
first look at last death—no we can take all of them into account under
Huddleston.

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o What if without that evidence there was no prima facie case — i.e. what
if proof regarding Mundy’s death, standing alone, would not allow a
rational jury to find Smith guilty of murder? Answer:
 4.10 – Nevada much more rigorous standard for the prosecution to meet.

CHARACTER AND HABIT

F.R.E. § 406 Habit; routine practice.

Evidence of a person’s habit or an organization’s routine practice may be admitted
to prove that on a particular occasion the person or organization acted in
accordance with the habit or routine practice. The court may admit this evidence
regardless of whether it is corroborated or whether there was an eyewitness.

Habit vs. Character

 General rule: Evidence of habit is admissible to prove conduct in conformity
with habit on a particular occasion
 Trying to avoid: Things that are morally tinges—we want the brushing teeth,
path to work, etc.
 Where to draw the line between character and habit: “Character and habit
are close akin. Character is generalized description of one’s disposition, or of
one’s disposition in respect to a general trait, such as honesty, temperance, or
peacefulness. ‘Habit,” in modern usage, both lay and psychological, is more
specific. It described one’s regular response to a repeated specific situation…A
habit on the other hand is the person’s regular practice of meeting a particular
kind of situation with a specific type of conduct, such as the habit of going down
a particular stairway two stairs at a time, or of giving the hand-signal for a left
turn…the doing of habitual acts may become semi-automatic.”
 Habit evidence is highly persuasive as proof of conduct on a particular occasion.

Rule: In admitting the evidence under F.R.E. 406, the cumulative effect can be
sufficient to establish a habit
Loughan v. Firestone (11th Cir. 1985)
 Facts: In defending against a tort claim brought by a mechanic injured while
assembling a wheel, the defendant offered evidence from three separate sources
that the mechanic had a longstanding habit of drinking on the job
 Holding: Admissible. No abuse of discretion
 Reasoning: Length of time and number of witnesses show habit
 Counter: Semi volitional
 Roth: Thinks this is a troubling opinion

Rule: KY does not recognize habit evidence.

Burchett v. Commonwealth (Ky. 2003)
 Facts: Reckless homicide suit after defendant crashed into someone while on his
way to hospital where his girlfriend was having a baby. Plaintiff offered evidence
that defendant drank and smoked pot frequently
 Issue: Whether evidence that a defendant smoked marijuana on a daily basis is
admissible to prove that he smoked marijuana on the day of the collision?

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 Holding: No, evidence was inadmissible. The evidence of appellant’s marijuana

use should have been excluded. This error by the trial court was not harmless.
 Reasoning: Court goes into a discussion on the pitfalls of admitting habit
evidence. Simply characterizing a defendant’s action as a “habit” attaches
excessive significance in the minds of jurors and distracts jurors from the actions
of the defendant on the particular day in question. “This is the type of evidence
that delays trials and confuses jurors—an exorbitant price to pay for evidence
that fails to even address the critical issue…” Defendant did not drink alcohol on
the day of the accident, it was confirmed by blood alcohol test!
 Dissent: KY is only state with complete ban on habit evidence. Courts should
have more discretion. “Having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”

404(b) and 406 Problems

1. D is accused of murdering his wife, V. He found her at the bottom of the

staircase in their home, with multiple injuries to her head. The government
argues he brutally killed her. He claims it was an accident and that V fell down
the stairs and that he found her there at the bottom of the stairs. The
government seeks to offer the following evidence. Should any of this evidence be
admitted?
a. Male witness, W, who will testify that he (W) was having affair with D for 1
year prior to V’s death.
i. Answer: Defense argues that it’s not relevant and prejudicial
ii. 1) Prosecution argues it is relevant and under F.R.E. 404(b)(2) –
shows motive.
iii. 2) F.R.E. 403 balancing— what is the probative value and how does
it weigh against prejudice; for it to be kept out probative value has to
be substantially outweighed by prejudicial nature. Judge could wait
and see how the evidence and arguments come in. Maybe there will
be other evidence of motive—judge could defer the ruling and wait to
call the witness and see what else comes out. Sometimes judge
defers 404(b) ruling
b. Sexually explicit emails exchanged between D and W recovered from the
family computer at the home shared by D and V.
i. Answer: If I am going to let in evidence about the affair, this seems
to be piling on and adding to danger of unfair prejudice. Especially if
they are salacious and not that relevant
ii. On the other hand: Prosecution could argue that she found the
emails and confronted him. Might be important to story to show that
they were sexually explicit
iii. If the theory is you are killing her to be with your lover, that might
matter. Colorable argument—goes to depth of motive
iv. Quoting Old Chief – syllogism is not a story. For jury to hear that he
had an affair is different from hearing the nature of affair
c. Evidence that, twenty years before V’s death (10 years before D ever met
W) D’s neighbor died after hitting her head while falling down the
staircase at her home. D was the first one to find her body and called the
police. Answer: Defense argues it is irrelevant

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i. Prosecution argues F.R.E. 404(b)(2) to prove knowledge. Even if

prosecution did not want to argue or prove that he pushed the first
woman, simply arriving on the scene
ii. Danger of unfair prejudice is high
iii. Modus operandi — this is how he reacts in these situations…
2. D is on trial for conspiring to commit a bank robbery with three other individuals:
A, B, and C. A, B, C, and D were arrested in a car a block from the bank; D was
driving. He claims that he did not know anything about the robbery and was
simply giving his friends a ride. A is cooperating with the government and will
testify that:
a. Prior to robbery on trial, A, B, C, and D all committed three other robberies
together; and…Answer: This is like Crocker - Evidence of prior arrest was
admissible because “knowingly” (F.R.E. 404(b)(2)) participating in a
conspiracy is a crucial element of the crime; the fact that defendant had
committed bank robbery before is highly probative of his knowledge that it
is illegal. F.R.E. 405(b)
i. Defense will argue it is unfairly prejudicial
ii. Clarifying How are this is coming in udner 405(b)
b. A and D had previously assaulted a person together and beaten him
severely.
i. Answer: Defense will argue it is not as probative and potentially
more unfairly prejudicial becomes it seems worse.
ii. Government’s argument: Cumulative nature of these two acts. He
wasn’t some innocent guy. Nature of their relationship is one of
conducting crimes. Not asking jury to make inference about your
character—but about your relationship with this other person.
3. P sues D for injuries suffered when D struck P (a pedestrian) with D’s car. D
claims that P came out of nowhere; P claims that D was speeding and not paying
attention. P wants to offer evidence that D was on his way home to his spouse
and family after a tryst with his lover and was running late. Should this evidence
be admitted? Answer: 404(b)(2) to show lack of accident
4. In plaintiff’s suit against railroad, plaintiff (who was 15 years old at the time of
the incident and driving with a learner’s permit) wants to offer evidence that it
was his habit to stop at stop signs to show that he stopped at railroad crossing
prior to his collision with train. Should this evidence be admitted?
a. Answer: Under F.R.E. 406, because the 15-year-old only has a learner’s
permit. If we had adequacy of sampling and could establish that it
happened, it would come down to the evidence of this individual. If he has
been driving every day for a year and had developed a habit it might be
enough. But the timing is an issue. For a 15-year-old who just got permit,
we might not have enough yet.
b. What if plaintiff wants to call a witness to say that he is a careful driver?
This probably can’t be something that is semi automatic. It’s closer to
character
5. In action against defendant food processing plant for food contamination, the
defendant seeks to offer evidence of the plant’s routine practices involving
cleanup, sanitation, and maintenance procedures to refute allegations of food
contamination on the particular occasion in question. Should this evidence be
admitted? Answer: Yes, this is likely evidence of an “organization’s routine
practice” under F.R.E. 406

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SEXUAL ASSAULT AND CHILD MOLESTATION

Two Categories of Cases and Rules
 (1) Character of Victim – 412
o Rape Shield law
 (2) Other Conduct by the Defendant – 413–415
o Added by Congress in 1994
o Not adopted by most states, not approved by advisory committee
o
Graham v. State (Tex. Crim. App. 1933)
 “Proof that the [prostitute] bore the general reputation of being unchaste and
had habitually engaged in acts of sexual intercourse with others was admissible
as shedding light on the transaction…”

F.R.E. § 412 Sex-Offense Cases: The Victim.

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal
proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal
case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered
to prove that someone other than the defendant was the source of
semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with
respect to the person accused of the sexual misconduct, if offered by the
defendant to prove consent or if offered by the prosecutor; AND
(C) evidence whose exclusion would violate the defendant’s
constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a
victim’s 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. The court may admit evidence of a victim’s reputation
only if the victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party
must:
(A) file a motion that specifically describes the evidence and states the
purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause,
sets a different time;
(C) serve the motion on all parties; and

Character of Victim: F.R.E. 412

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412(b) Exceptions
 (1) Criminal
o (A) Example – has multiple sexual partners in one evening, defendant
offering evidence of victim’s sexual behavior to prove someone other
than defendant did it
o (B) Example – evidence of past sexual activity between the actors,
consent
o (C) Catch all – any other evidence, the exclusion of which would violate
the defendant’s constitutional rights
 (2) Civil
o Balancing test – but not the same as 403
o Harm to the victim must be considered
o Shifts burden

Rule: The defendant has a Constitutional Right enumerated in the exception 412(b)
(1)(C) — to cross the witness for bias. Defendant must have an opportunity to
properly confront his accusers
Olden v Kentucky (U.S. 1988)
 Facts: Victim was married to Russel. She says Olden raped her. She gives
varying accounts of incident to police and on direct and cross. Russel says that
when she got home, she was she was rapes.
 Evidence: Defendant’s theory of the case was that victim concocted the rape
story to protect her protect her relationship with her husband, so he wouldn’t
find out about her extramarital affair with Russel’s brother, the defendant. To
demonstrate Matthew’s motive to lie, Olden introduced evidence of Matthew’s
and Russell’s living arrangement (i.e. with other people), and wanted to cross-
examine Matthews about it
 Issue: Was the evidence of Matthews and Russell’s living together properly
excluded under 412?
 Holding: The relationship between the alleged victim and the defendant’s
brother was a critical element of the defense and should have been allowed in
(F.R.E. 412(b)(1)(C))
 Reasoning: “A reasonable jury might have received a significantly different
impression of the witness credibility had defense counsel been permitted to
pursue his proposed line of cross examination.”
o How does it undermine her credibility? Even without going through
character, could show that she had a motive to lie. She wouldn’t want to
admit that it was consensual, because it was the brother!
o Having deprived of questioning about this, defendant was effectively
denied his Confrontational Clause right. It’s not like the defense wasn’t
permitted to cross, but they weren’t able to ask her about living
arrangement with Russel.

Character of the Defendant

 1994 Amendment – “The new rules will supersede in sex offense cases the
restrictive aspects of the Federal Rule of Evidence 404(b). In contrast to
404(b)’s general prohibition of evidence of character or propensity, the new

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rules for sex offense cases authorize admission and consideration of evidence
of an uncharged offense for its bearing “on any matter to which it is relevant.”
 Criticism: “”Under new Rule 413, prosecutors….are free to use even
unproven (and perhaps false) allegations of sexual misconduct that may be
many years old.” (James Duane)
o “How long will it be before a prosecutor tells a woman that her case is
no good—or at least unwinnable—because there doesn’t seem to be any
other evidence of prior rape by the defendant? What starts as a boon to
women easily transforms into a requirement or a litmus test…” (Avivia
Orenstein)

F.R.E. 413–415
 Under 404(b), you need a theory without going through propensity. One doesn’t
have to do that with respect to 413 and 414
 It’s a clear statement by Congress that it’s coming in even if inviting inference of
character
 For other act evidence to be admissible, it doesn’t have to be a convicted charge.
If jury could find by a preponderance that the other act occurred, that’s enough
 Rationale: usually aren’t many witnesses in these cases so the case is usually
based solely on testimony

Rule: Rule 403 Balancing Test does apply to evidence admitted under Rule 413
and Rule 414; however
Courts must apply Rule 403 Balancing Test to evidence admitted pursuant to Rule
413 and Rule 414 such that Rule 413 and Rule 414 may have their intended effect:
The intended effect of Rule 413 and Rule 414 is to make evidence of specific acts
of sexual assault and child molestation admissible — even for purposes of proving
propensity — despite the fact that it is inherently very prejudicial due to the stigma
tied to it.
U.S. v. LeCompte (8th Cir. 1997)
 Facts: LeCompte allegedly sexually abused 11-year-old niece; defendant moves
in limine to exclude evidence of prior uncharged sex offenses against another
niece. In first trial, government offered evidence under F.R.E. 404(b).
Government did not provide timely notice so it could not offer under F.R.E. 414.
 Holding: Motion in limine should not have been granted.
 Reasoning: Probative value of niece’s testimony was not substantially
outweighed by unfair prejudice. All propensity evidence has danger, but
Congress intended to overrule holdings such as this when it amended the rules

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F.R.E. § 413. Similar Crimes in Sexual Assault Cases.

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual
assault, the court may admit evidence that the defendant committed any other
sexual assault. The evidence may be considered on any matter to which it is
relevant
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence,
the prosecutor must disclose it to the defendant, including witness’ statements or a
summary of the expected testimony. The prosecutor must do so at least 15 days
before trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This Rule does not limit the admission or consideration
of evidence under any other rule.
(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault”
means a crime under federal law or under state law involving:
(1) any conducted prohibited in 18 U.S.C. § 513 chapter 109A

Rule:
U.S. v. Cunningham (7th Cir. 1996) (Posner)
 “No special rule analogous to 413 or 415 is necessary to mazke the evidence of
the earlier crime admissible, because 404(b) expressly allows evidence of prior
wrongful acts to establish motive.”
 Someone who has committed other sexual assaults has a taste for that kind of
activity and that’s their motive so 404(b) is enough
 It is not the majority view of courts in terms of ability of courts to offer such
evidence
 Counter to Posner’s view: It’s one thing if a prosecutor can argue a modus
operandi, but someone having a taste for it might be too much like character
evidence

Hypo: Bill Cosby

 Defendant charged with sexually assaulting woman in 2004 without her consent.
She will testify that she and defendant were friendly and he was mentoring her.
That on this occasion defendant gave her a pill to drug her and then sexually
assaulted her at his home near Philly. Defendant acknowledges the sexual
encounter but says it was consensual. Comes out that 13 other women have
similar stories…W, woman, who worked for Defendant agent, will testify that in
1996 she was friendly with defendant and he was mentoring her. She will testify
that they had lunch at his CA hotel after which he gave her a large pill. After she
passed out, he sexually assaulted her. In 2005 deposition, taken in connection
with a civil lawsuit filed by V against defendant, defendant acknowledged having
extramarital affairs and to obtaining Quaaludes as part of his efforts to have sex
with women.

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o Modus operandi (404(b)(2)—similarities, down to specifics of how they

got to know each other, and how he drugged them
o Judge, in actual case, rules that only 1 woman was permitted to testify.
Judge was walking a fine line of not having conviction violate 403, while
also giving prosecution what they needed
o In PA, they don’t have equivalent of 413, 414, so judge must analyze
state equivalent

Hypo: Jerry Sandusky

 Coach of college football team, on board of local nonprofit providing services to
youth, charged and went to trial for sexually assaulting child in nonprofit
program. Conceded that he was friendly with child but denied sexual assault.
Prosecution had evidence and gave notice that 10 years prior to assault, he had
assaulted another child.
 Enough under 404(b)? Unless we know more about the facts, it’s probably not
coming in
o Prosecution could pursue knowledge
o Would come down to its probative value and weigh against unfair
prejudice
o Probably won’t survive 403 balancing analysis, even though a
permissible purpose has been admitted
 What about evidence that he assaulted 10 children in the year before trial and
invited them to baseball games and then invited them back to his house?
o Other permissible purpose: Modus operandi (404(b)(2))
o Evidence was admitted at trial as pattern of gaining trust, bringing
them back to his home, and then that case looks really different from
instance of one victim saying this happened
 Son comes forward and says my dad abused me
o If it’s 414, it can come in
o Judge might say there’s not much probative value if we already have the
10
o Under 404(b), argument for admission is harder
o It’s not the same modus operandi
o Under 403, this might not come in because abusing his own child might
be prejudicial

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OTHER FORBIDDEN INFERENCES

Background
 These rules function like character evidence rules—they cannot be offered
for their forbidden inference purposes but can be offered for some other
purpose.
o 407: Subsequent Remedial Measures
o 408: Compromise Offers and Negotiations
409: Offers to Pay Medical and Similar Expenses
o 410: Pleas, Plea Discussions
o 411: Liability Insurance

A. SUBSEQUENT REMEDIAL MEASURES

Introduction
 F.R.E. 407–411 are based in policy. These rules cover behavior that we want
people to engage in
 Why is it a forbidden inference? We want people to take action to make things
safer without the fear of being viewed guilty by the public as a result of taking
remedial action
 Hypo: Tenant who lives in apartment building. There are carpeted stairs. T slips
and falls and notified landlord. Landlord comes and repairs the carpet. Is it
permissible? NO, not for proving fault (407).
o But it could be used for proving control, ownership or feasibility of
precautionary measures
o Plaintiff can only bring this in to show ownership or control if it’s disputed

Analysis
 (1) Is the subsequent remedial measure offered to prove one of the prohibited
findings? Negligence, culpable conduct, a defect in product or design, need for
warning?
o If yes, inadmissible
o If no, evidence is admissible is offered for some other purpose such as
ownership, control or the feasibility of precautionary measures?
 If yes, is the issue material to the action?
 If yes, did the other side dispute the issue? (In Re Asbestos)
o If yes, admissible
o If no, inadmissible

F.R.E. § 407 Subsequent Remedial Measures.

When measures are taken that would have made an earlier injury or harm less likely
to occur, evidence of the subsequent measures is not admissible to prove:
 Negligence
 Culpable conduct
 A defect in a product or its design; or
 A need for a warning or instruction
But the Court may admit this evidence for another purpose, such as impeachment
or — if disputed — proving ownership, 117
control, or the feasibility of precautionary
measures.
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Rule: Evidence survives exclusion under F.R.E. 407 if offered for “another
purpose,” i.e. to prove control, rather than a forbidden inference such as
negligence.
Clausen v. Storage Tank Development Corp (1st Cir. 1994)
 Facts: Slip and fall action. Three years after incident, defendant replaced
slippery ramp with stairs. Trial court admitted the evidence with limiting
instruction that the repair goes only to issue of control. No objection  plain
error review.
 Defendant argues evidence that they restored stairs after the accident should
not have been admitted. Plain error? (Note higher standard because not
challenged below.)
 Holding: Admissible—the subsequent remedial measure was not offered to show
negligence, but rather tended to show another purpose — control, which was
material and in dispute at trial
 Reasoning: Escaped prohibition by 407 because offered to prove Storage Tank
Development Corporation had control/access/responsibility (and not to show that
defendant was negligent).
o Then the 403 question is if it is relevant enough – ramp replaced three
years after the fall, so not that probative, so this is the bigger issue.
Might have been excluded under 403 but not plain error to admit.
o Limiting Instruction: “Evidence of the subsequent installation of stairs
in 1992 is evidence relevant only on the issue of control. I tis not to be
considered evidence of liability or fault.”

Rule: Not admissible when the “other purpose” is not disputed. “Feasibility is not
an open sesame.”
In Re Asbestos Litigation (2d Cir. 1993)
 Facts: Asbestos case. Wrongful death. 12 years after decedent was last exposed
to asbestos, defendant began placing warning labels on products. Plaintiff offered
the evidence to prove feasibility of warning
 Holding: Error for district court to admit evidence that defendant, placed
warnings on its asbestos product after decedent’s last exposure. The warning
were subsequent remedial measures and inadmissible under F.R.E. 407
 Reasoning: The subsequent remedial measure was actually offered to show
negligence/culpability. Feasibility was not an issue in the case. The lack of label
prior can’t be used for feasibility or else the exception swallow the rule.
Defendant at no point argued that it was unable to issue a warning (feasibility),
instead it vigorously denied that its product required a warning or was defective
without a warning.

Hypo (Based on Mahland v. Poos & Wild Canid Research Center)

 Suppose that, after Sophie the wolf allegedly attacked little Daniel (while chained
to a fence in Ken Poos’ backyard), Poos moved her to a steel cage further back on
his property
 1) Is evidence about this action admissible?
o This evidence would not come in  F.R.E 407
 2) If Poos takes the stand on direct examination and says wolf was NOT my
responsibility (disputes it), is the evidence admissible on cross-examination?

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o Yes, he is disputing ownership and control and the evidence could come
in to prove another purpose (control, etc.)
o *If the witness takes the stand and says something to open the door
bringing control, ownership, etc. in dispute, or to be impeached, then on
cross the evidence can be used to prove control, ownership, etc., so you
have to be careful when prepping your witness

Probing F.R.E. 407’s Application to Subsequent Remedial Measure Taken by

a Third Party
Rule: Admissible. 407 does not apply to action taken by a third party/non-party.
Diehl v. Blaw-Knox (6th Cir. 2004)
 Facts: Worker injured by road widener that reversed on him. Plaintiff claims
defective/improper design. lawsuit is against manufacturer of machine, not
employer. The employer’s mechanic made the remedial change, but he was not a
party to the suit.
 Evidence: Plaintiffs sought to introduce testimony by IA mechanic (employer)
that he modified the widener shortly after the accident by repairing and placing
warning signs at rear of machine. What’s the probative value/relevancy? As an
attorney for the plaintiff, we want to show that this machine was dangerous, and
showing that the mechanic made these changes right after the incident, supports
an inference that the machine was not reasonably safe at the time the machine
left the company’s control
 District Court: IA redesign was a subsequent remedial measure inadmissible
under F.R.E. 407 and alternatively excluded under F.R.E. 403 grounds, because
it would create danger of unfair prejudice, confusion on the issues, and be
misleading to jury.
 Issues & Held: (1) Are third-party subsequent remedial measures covered
under F.R.E. 407? No, and therefore the district court erred in excluding
the IA redesign evidence. Circuits addressed subsequent remedial measures
taken by a non-party or third-party and concluded that Rule 407 does not apply.
407 rests on strong PP to encourage manufacturers to make improvements for
greater safety. This should be allowed in because it is subsequent to manufacture
of product, but not subsequent to accident.
o (2) Was the evidence’s probative value substantially outweighed by
unfair prejudice under F.R.E. 403? No, the jury would not have been
confused or misled. Measures to weld on a bumper to rear of machine
were available both in 1999 and 1970, so time frame does not matter.
There is no dispute in record that the IA redesign was done for any
purpose other than to prevent such accidents
 Mechanic testified that he made the repairs specifically to
prevent the same accident again
 Under Penn law, product defects are evaluated at time of mfg.
distribution
 Policy: Manufacturers will be discouraged from making products safer if they
know that the evidence of redesign can be introduced to show how a previous
product was unsafe!
 Roth: It’s odd because you don’t really know if you are going to be a party to the
suit, he could have sued employer. If they were named as a party, could not have
been offered against them.

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Hypo
 If injury to 1 person, then remedial measure, and then injury to person 2. Does it
come in regarding plaintiff 2? Not subsequent to Plaintiff 2, so should it be
inadmissible for Plaintiff 2?
o Company will say that under 407’s protection it shouldn’t come in because
they took the precautions after P1’s injury and shouldn’t be penalized for
remedial measure after P1.
o Policy-wise: want the car manufacturer to make subsequent remedial
measure after Plaintiff 1, AND to issue a recall for defective products. So
the subsequent remedial measure will be admissible to Plaintiff 2 because
don’t want defendant to get away with not issuing a recall. Seems unfair to
Plaintiff 1, who couldn’t use those same facts, but we are balancing policy
interests.

SETTLEMENT EFFORTS
Civil Settlements: Introduction
 F.R.E. 408 is designed to encourage settlements by fostering free and full
discussion of the issues
 Why as a policy matter do we make all of (a) inadmissible? We want to
incentivize compromise and discussion, as opposed to going to trial.

Analysis in Determining Whether F.R.E. 408 is Relevant:

 (1) Whether the statement at issue was part of a negotiation
o (a)(1) narrow – applies only to offer or making a payment
o (a)(2) broader – covers conduct in the context of a discussion or
negotiation
 (2) Whether we have a “disputed claim”
o Proponent of the rule has to show that there was a disputed claim—this
means that Rule 408 does not prevent the admission of an offer of
payment like “I know I made a mistake and there’s bout $500 worth of
damage to your car, but I’ll only pay $200”
o Example: “I stole. I feel terribly about it” vs. “Can we just split the
29,000 and make this situation go away.” In the actual Davis case, it
was clearly defendant was attempting to negotiate. Whereas, “I stole” is
just a clear admission of guilt.
o In order to get in the door – it must be clear/must be a colorable
argument for it being in the context of an actual negotiation
 (3) Exceptions
o Does not allow conduct or a statement made during compromise
negotiations about the claim, EXCEPT
o Criminal case/government parties—where the negotiation concerns a
claim by a government body, the federal rule does allow the use of
statement and conduct made in the negations in a later criminal case.
 (4) Other Purpose
o Court may admit this evidence for “another purpose” such as proving
witness’ bias/prejudice, negating a contention of undue delay or proving
an effort to obstruct a criminal investigation or prosecution

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 Example: Bob and Michael have separate cases against Fedex.

Fedex settled with Bob but calls him as witness in Michael’s trial.
Bob is biased by virtue of his generous payout. Can bring in
payout to discuss witness credibility
o *There does not have to be a suit pending for the rule to take effect, it
can be effort to avoid suit
 (5) Limiting Instruction & 403. If something is coming in for “other
purpose”—always balance! If we think jury won’t be able to follow limiting
instruction—this is something we balance
o If affirmative defense, as in Polo, for example, could have written
limiting instruction to say: you should only consider this evidence with
respect to affirmative defense, not as to whether or not PRL would have
prevailed on its infringement claim absent the collateral estoppel issue

F.R.E. § 408 Compromise Offers and Negotiations.

(a) Prohibited Uses. Evidence of the Following is not admissible—on behalf of any
party—either to prove or disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or contradiction:
(1) [actual offer] furnishing, promising, or offering – or accepting, promising
to accept, or offering to accept – a valuable consideration in compromising or
attempting to compromise the claim; and
(2) [behavior during course of settlement] conduct or a statement made
during compromise negotiations about the claim – except when offered in a
criminal case and when the negotiations related to a claim by a public office
in the exercise of its regulatory, investigative, or enforcement authority [IRS
or government agencies, SEC – Civil claim settlement; if the party has
that discussion with civil authority, and the government can offer it in
a criminal case if worried, obtain immunity from prosecution; can K
with government for immunity].
(b) Exceptions. The court may admit this evidence for another purpose, such as

Rule: Shows you don’t need to be in a lawyer’s conference room specifically in

order for it to count as settlement or negotiation. It matters that negotiations are
taking place.
United States v. Davis (D.C. Cir. 2010)
 Facts: Fraternity treasurer defendant accused of stealing funds, he offered to
split half of the money found to make it go away. Defendant and other frat guy
are having a conversation outside of the courtroom. Defendant said: “Can we just
split this 29,000 and make this situation go away?”
 Held: 408 Excludes this. Dist. court abused discretion in permitting testimony
regarding settlement offer
 Reasoning: Because the evidence was used to prove consciousness of guilt, it
was inadmissible; consciousness of guilt proves “liability” under FRE 408(a).
The court saw defendant’s statement as a compromise offer. Court notes the
outcome would be different if it thought it was a bribe – court says it doesn’t
seem like defendant was trying to bribe other frat guy, and government didn’t
suggest it.

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o What about if someone said on the golf course “what if I pay for your
golf membership and make this go away.” This might seem more like a
bribe because taking the money personally. Also depends on motive of
offeror – “I won’t bring it up if you want to just take the money.” Could
be an offer of settlement, even if on the golf course, because even if
other party says “I am not talking to you” – in other words, can’t initiate
negotiation at your own peril.
o Best way to get protection under 408 is to talk about it with
lawyer in conference room.
 Policy: It makes no sense to force the party that attempts to begin negotiations
to do at their peril. This wasn’t being used to try to prove an effort to obstruct
criminal investigation, etc.
 Note: Is a bribe consistent with a compromise offer as contemplated by the rule?
Bribes are admissible
 Roth: Case shows how broadly “settlement/compromise negotiation” can be
construed.

Rule: If there is a document used in the course of a settlement discussion –

depends. Inadmissible if created for the purpose of negotiations, however, note that
a party cannot hide something from evidence by including it in a negotiation. Here,
the document would not have excited BUT FOR the negotaiton.
Ramada Development v. Rauch (5th Cir. 1981
 Facts: Franchise (Raunch) claimed Ramada built a bum hotel and therefore
refused to perform his side of the K. Ramada sent an architect to put a report
together, assessing the allegations of defects. Raunch wanted to offer this as
evidence.
 Holding: Inadmissible. Report was prepared in an attempt to gather information
for negotiations.
 Reasoning: The document wouldn’t have excited if the negotiations weren’t
happening! Because it was created for this purpose, it is covered. The architect’s
report in this case contained the statements from the compromise negotiations.
It memorialized statements in compromise, which can’t be introduced.
o Even if it was only the statements of one party, it was prepared in
response to the claim.
o It didn’t preexist the litigation, so it can’t come in because of F.R.E.
408.
 1) Suppose report was created before the litigation was started, but was
brought in during a settlement discussion, is the report inadmissible? The
document itself can come in, however the conversations themselves are not
admissible
 2) What was different about the architect’s report in this case? It
contained the defects of the structure and memorializes statements made during
the compromise

Rule: Admissible for retaliation claims. When evidence can be used to establish
an independent violation unrelated to the underlying claim, it is admissible under
the “another purpose” exception of F.R.E. 408
Carney v. American University (D.C. Cir. 1998)

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 Facts: African-American female was fired. She filed discrimination suit. She sent
letter to university expressing her intent to sue for discrimination. Issue about
severance package size came up. University sent a letter to her acknowledging
her right to a larger package. University never paid. Plaintiff offered letter.
 Holding: Letters could not come in for the discrimination claim, since that issue
was the topic of settlement efforts, but could come in to support retaliation claim
 Reasoning: 1) Apart from settlement letters, Carney offered evidence from
which a jury could conclude that the University retaliated against Carney either
by refusing to give her any extra pay or refusing even to consider it. 2) Although
the settlement letters are inadmissible to prove liability or amount, they are
admissible “when the evidence is offered for another purpose.” F.R.E. 408
o Here, the correspondence can be used to establish an independent
violation
o Letter she wanted to offer was sent to her by defendant in context of
trying to settle claim that was already lodged against them.

Rule: Negotiations for non-compromise purpose during compromise allowed. If

something happens during the negotiation gives rise to a new claim or defense—or
gives rise to a new affirmative defense—then you can use that evidence to prove
that new claim or defense. But you cannot use it to prove the initial claim.
PRL USA HOLDINGS v. Polo Association (2d Cir. 2008)
 Facts: PRL Polo brought suit against Polo Association and licensee, Jordache, for
trademark infringement of polo logos. At trial, PRL presented evidence that
consumers were likely to confuse the marks. Polo Association presented contrary
evidence that PRL had consented to use. PRL objected to this latter evidence on
ground that it was made during compromise negotiations. Polo association
claimed it was admissible under F.R.E. 408 “as another purpose” because they
were asserting affirmative defense of estoppel, acquiescence. District Court:
evidence was admissible to prove the defendant’s assertion that PRL was
estopped to claim infringement after it led the defendants to believe no claim of
infringement would be brought
 Holding: Affirmed District Court’s judgement. Statements were being offered to
prove promissory estoppel so they fall under the “other purpose” exception to the
rule.
 Reasoning: F.R.E. 408 Exception intends to exempt from absolute prohibition of
the Rule evidence focused on issues different from the elements of the primary
claim in dispute. Estoppel by acquiescence is an affirmative defense, which raises
issues different from the elements of a claim of infringement.
o “To construe Rule 408 as barring such evidence would substantially
limit the opportunity of defendants to rely on the defense of estoppel,
even when well substantiated…”
 403: if we think jury won’t be able to follow limiting instruction—this is
something we balance
o Could have written limiting instruction to say: you should only
consider this evidence with respect to affirmative defense, not as to
whether or not PRL would have prevailed on its infringement claim
absent the collateral estoppel issue
 Note: There does not have to be a suit pending for the rule to take effect, it can
be effort to avoid suit

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Criminal Settlements
 Applies to civil and criminal cases
 Must be made to a prosecutor, not detective
 Generally, evidence of a plea discussion or a statement made during a plea
discussion is not admissible in a civil or criminal trial, however, there is an
exception—it can be waived by the defendant, which permits the government to

F.R.E. § 410 Pleas, Plea Discussions, and Related Statements.

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not
admissible against the defendant who made the plea or participated in the plea
discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under
Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a guilty plea or they
resulted in a later-withdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or
(4):
(1) in any proceeding in which another statement made during the same plea
use the statement to impeach the defendant (Mezzanotto)

Rule: Court Waiver Rule: Absent some affirmative indication that the agreement
was entered into unknowingly or involuntarily, an agreement to waive exclusionary
provisions of F.R.E. 410 rules is valid and enforceable. Note: Waiver probably
extends to 411 (liability insurance), too, especially if party has contracted it away.
U.S. v. Mezzanatto (U.S. 1995)
 Facts: Metch charge. Prosecutor agreed to negotiate please, but only if their
discussions were on the record and defendant agreed to allow his statements
during discussion to come in to impeach him on the stand should there any
inconsistencies in his testimony. Defendant agreed. Defendant admitted to a lot,
but no bargain was reached. Defendant testified to the opposite of what he said
in discussions. Plaintiff used statement to impeach defendant.
 Defendant argument: 1) Waiver is fundamentally inconsistent with the Rules’
goal of encouraging voluntary settlement, 2) There is gross disparity between the
bargaining power of the parties and waiver agreement is “inherently unfair and
coercive.”
 Ninth Circuit held: exclusionary provisions of F.R.E. 410 cannot be waived. If
Congress wanted them to waivable, they would have written them in. Since
Congress addressed exceptions, they occupied the space and that precludes
reading the rule as allowing waiver.
 Policy Argument: If we make it waivable, the government is going to insist on
waiver all the time, which makes a dead letter out of F.R.E. 410
 Holding: However, SCOTUS held that there is a presumption of waivability

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 Reasoning: Although some waiver agreements “may not be the product of an

informed and voluntary decision,” this possibility does not justify invalidating all
such agreements
o Serves best interests of defendants. If Government prosecutors can’t
contract these things, government will never sit down with defendants.
Defendants get benefits from sitting down with government officials—
reduced sentences.
o Better than perjury. Defendant is either lying to government in plea
discussion or at trial, so if government is allowed to impeach—the jury
will be permitted to see that the defendant didn’t tell the truth at one
point. Better this than someone being able to perjure themselves.
 Counter: Why doesn’t rule just include an exception for impeachment purposes?
This was the Ninth Circuit’s point! Since other rules have impeachment as an
exception, this is not what Congress intended
 Dissent (Souter, Ginsburg): Exception is swallowing the rule. Worried about
what will happen as a consequence. Will prosecutors go further and ask for
complete waiver of 410? Roth says this hasn’t proven to be the case.

MEDICAL PAYMENTS & LIABILITY INSURANCE

F.R.E. § 409 Offers to Pay Medical and Similar Expenses.

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or
similar expenses resulting from an injury is not admissible to prove liability for the
injury

F.R.E. § 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. But the court
may admit this evidence for another purpose, such as proving a witness’ bias or

F.R.E. 409
 What’s a similar expense? According to most courts:
o No: Lost wages and repairs to property
o Yes: Rehabilitation bills
 No express exception paragraph
o If you have evidence of someone offering to pay a doctor’s bill, does that
mean you can never offer that evidence? Could you offer it so long as you
are not offering it to prove liability? Fact that there is no express exception
paragraph doesn’t mean you can’t offer it for some other purpose (even
though not spelled out like 408)

F.R.E. 411
 Exceptions explicitly set forth
o If I get into an accident, and I am the defendant being sued, you can’t put
out evidence that I have liability insurance to prove that I am liable
 Relevancy: Without going through character—could say that if you carry liability
insurance, you are a bit more reckless. In context of driving, knowing that

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someone else is going to front the bill allows me to be a bit more

reckless/careless
 Policy: We don’t want the jury hearing about who had and who does not have
liability insurance. If jury hears that one party has generous insurance policy and
one party does not—how might they be influenced? Jury will say they have
insurance, so I won’t worry about them. It will influence their decision regardless
of who was actually responsible

Rule: Same insurance between parties can be offered for purposes of showing
possible bias of witness, if it’s being offered to show bias—and not proof of
insurance—it falls outside purview of F.R.E. 411
Charter v. Chileborad (8th Cir. 1977)
 Facts: Alleged medical malpractice. Plaintiff was struck by truck while working
on highway. Seriously injured. Surgery performed. Both legs amputated. Plaintiff
called Dr. Lichtor who said cause of complications and amputations was
defendant’s negligence. Defendant called Mr. Adler an attorney who testified
about Lichtor’s reputation. Plaintiff attempts to prove that witness attorney Adler
was employed by same insurance as defendant doctor
o The statements were admissible to show there was negligence on part
of doctor however
o Inadmissible for different purpose
 Holding: Evidence admissible
 Reasoning: The fact that defendant’s insurer employed Mr. Adler was clearly
admissible to show possible bias of that witness. Plaintiff’s claim rested for the
most part on the reliability of his witness.
o This doesn’t fall within 411. This isn’t showing proof of insurance, this
is going to bias of the witness!

Rule: Evidence of liability insurance may be admitted if relevant to an issue in the

case or to prove bias or prejudice of a witness (F.R.E. 411), however, it is not
admissible to prove negligence of the insured person.
Higgings v. Hicks Co. (8th Cir. 1985)
 Facts: Two motorcycle accidents occurred in stretch of highway where there was
construction. Hicks Company, under K with State of South Dakota, was doing the
construction. Plaintiffs claim Hicks was negligent in opening both lanes without
warning signs.
 Plaintiffs argue it was error for district court to refuse to admit evidence that
State of South Dakota carries liability insurance—arguing that evidence of state’s
liability insurance was admissible to eliminate any bias of the jurors as taxpayers
of the state
 Holding: Evidence of the state’s liability insurance was irrelevant to any issues
in this case and evidence was properly excluded
 Reasoning: Control, rather than liability, would have been permissible. Court
says that the rule expressly does not allow this because we don’t want jurors to
be thinking about this. It doesn’t go to who is actually liable or not just goes to
impermissible inferences about who is going to pay for all of it!

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Problems
 5.1 – Following a traffic accident, one driver says to the other “I don’t want to
litigate this. I’ll pay for damage to your car, and I’ll pay for you to see a
doctor.” If the second driver later sues the first for negligence, is the first
driver’s statement admissible to prove fault? Answer:
o “I don’t want to litigate this”: F.R.E. 408;
 Argument that it is like a negotiation: Covered if it is a settlement
negotiation. Argument that it is a better case than Davis. He is
contemplating litigation. Roth says this might not be airtight.
Closer to an attempt to settle
o “I’ll pay for damage to your car”: Admissible??
o “I’ll pay for you to see a doctor”: inadmissible under F.R.E. 409
because it is an offer to pay medical bills resulting from an injury; this
statement would be used to prove liability, which is impermissible
under 409
 5.2 – An appliance repairer requires his customers to sign a contract
providing that in any lawsuit brought against him, his lack of liability
insurance will be admissible without limitation. A clothes dryer he repairs
catches fire and causes extensive damage to the customer’s home. The
customer sues the repairer for negligence. May the defendant introduce proof
that he carries no liability insurance.
o Answer: Might be a question of 401 and 403 as far as what the
probative value is. Initially it seems F.R.E. 411 would relieve us from
ruling on probative value. But if we look at Mezzanatto – there is a
contract involved here where the customer waives 411. Generally
presumption that you can waive this
o Public policy of whether to hold up K or not
o Court would be hard pressed to not enforce it. Parties have stipulated in
advance to admission of this into evidence.
 5.3 – A bicycle company requires all of its customers to sign a contract,
agreeing that in any lawsuit alleging a product defect, evidence that a
defect was later remedied will be inadmissible for any purpose,
including proof of feasibility. The breaks fail on a bicycle sold by the
company, and the customer is injured. She sues alleging defective design. At
trial, the company claims that the brakes could not feasibly have been made
more reliable, and the customer seeks to counter that the claim with evidence
that following the accident, the company changed the design of the breaks in
a way that made them more reliable. Is that evidence admissible?
o Answer: F.R.E. 407 – subsequent remedial measure. We know that
normally SRM is inadmissible, but one of the exceptions enumerated is
feasibility if disputed. Absent K, if defense argues that breaks could
not be feasibly made more reliable, would that evidence be admissible?
YES, that is squarely within 407. So Q is what is impact of K that seems
to waive that part of 407? So can it be waived or not
o But if we look at Mezzanatto – there is a contract involved here where
the customer waives 407. Seems like 5.2.
o Public policy truth seeking aspect: you want trials to find the truth.
Bike company using this rule as a way to waive that. Here the waiver
frustrates truth seeking.

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 Mezzanato was enhancing of truth seeking function — D should

not be able to lie on the stand
 Insurance K is different — doesn’t frustrate truth seeking in the
same way
 Undermines purpose of rule to incentivize people to make safe
changes
 5.4 – Dobbs and his passenger, Plunkett are injured when the car Dobbs is
driving collides with a truck owned and operated by Turpin Trucking
Company. Plunkett (passenger) sues Turpin for his personal injuries and calls
Dobbs as a witness. On cross-examination, Turpin’s lawyer asks Dobbs, “isn’t
it true that you agreed to testify on Plunkett’s behalf in this case as part of a
settlement that Plunkett reached with your insurance carrier?” Should
Plunkett objection be sustained.
o Answer: Jury is going to hear that Dobbs, witness, testifying on behalf
of Punkett
o Being used to show bias on Dobbs part—this is like Charter v.
Cheleboard
o Not running afoul of concerns in 411. Turpin’s trying to bring out issues
of credibility because the witness is biased by the settlement and has an
incentive/bias which prejudices defendant
o F.R.E. 408 – we should run it through 408 and see if we have an issue.
It’s alluding to fact of settlement, so even if Dobbs wasn’t part of that,
it’s Plunkett’s settlement and Plunkett is objecting to question. Under
exception—proving bias of witness—it would be okay
 Additional problem: Defendant is under investigation for trafficking
counterfeit $100 bills. Agents from Secret Service receive a tip that defendant
has several of the counterfeit bills at his home. The agents go to defendant’s
home and ask to speak with him. He agrees and invites agents in. He admits
to possessing and trafficking in the counterfeit bills. Assume no Miranda
violation. Are his statements admissible at subsequent trial?
o Answer: Not admissible. What’s defendant likely to argue? F.R.E. 410 –
this was in a criminal context and these were plea negotiations.
o Prosecution and better argument: This is not a plea discussion. This
was just agents showing up at your door. Also, this was not an “attorney
for the prosecuting authority” under 410(a)(4)
o What if defendant says: I’m not sure if I want to talk, but I am
interested in working with you, especially if I can help myself here. Can
you get me a better deal if I do that?. Once defendant starts saying
things that manifest negotiation it’s much better argument that it would
be protected under 408 and even F.R.E. 410 – if agents say we have
authority to get you better deal, many courts have said we are not going
to let agents represent they can speak for pros and thus may fall under
410 anyway

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TRIAL MECHANICS

ORDER OF PROOF
Introduction
 A traditional rule of trial practice, codified in the F.R.E. and its state
counterparts, generally restricts cross-examination to the subjects addressed
in direct, and redirect examination to the subjects raised on cross
 But trial judges have broad discretion to depart from that rule

Review on Order of Trial

1. Opening Statements
a. Party carrying burden generally goes first
b. Followed by opening statement by defense
c. Opening is not evidence—lawyers are giving a preview about what they
expect will be presented at trial. Opportunity to tell story (Old Chief).
d. Openings can’t be argumentative
2. Presentation of Evidence
a. It’s only the witnesses answers that are evidence
b. Sometimes witness’ answer has to be understood in context of what is
asked
c. Documents and other exhibits are evidence
d. Party with burden generally goes first in calling witnesses
i. Call witnesses (one at a time, they choose order)
ii. Direct Examination: When you put your witness on stand
iii. Cross Examination: Adversary gets to ask questions of the witness
iv. Re-Direct
v. Re-Cross
e. With each witness, we are trying to winnow down the issues
f. Biggest ring at top – direct
g. Cross Should be Limited to Matters on Direct, but when might it not
be?
i. Court will frequently let you go into additional matters on cross
rather than forcing you to re call the witness if it’s someone you
were going to call anyway
ii. Witness credibility—if the witness is primarily helping your
adversary you generally want to attack the credibility at least as
to some portion of the testimony
1. Bias (i.e. “isn’t it true you are related to the plaintiff?”)
2. Inconsistent statements (i.e. “isn’t it true that you
previously said X about what you just said Y about on the
stand”)
h. Defense can put on its case
i. When party who has the burden is finished calling witnesses for
Case in Chief (i.e. when prosecution rests)
ii. Defense doesn’t have to because it doesn’t bear burden
3. Instruct Jury

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a. Judge will instruct jury (some jurisdictions have closings before this)
4. Closing Arguments
a. Can argue from evidence
b. Lawyers assemble the wall from all the evidence they have gathered
in the case—their theory in the case

F.R.E. § 611 Mode and Order of Examining Witnesses and Presenting

Evidence.
(a) Control by the Court; Purposes. The court should exercise reasonable control
over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the
subject matter of the direct examination and matters affecting the witness’s
credibility. The court may allow inquiry into additional matters as if on direct

Rule: Judge has discretion to exercise reasonable control over mode and order of
examining witnesses (re enforced F.R.E. 611(a))
Stone v. Peacock (11th Cir. 1992)
 Facts: Stone lost a jury verdict in his suit against Georgia Dept. of Corrections,
claiming that they terminated his employment in retaliation for his speaking out
about the improper use of public property funds. At the beginning of the trial, the
District Court required Stone to testify first so that some chronology would be
laid out at start of the case. This testimony was not subject to cross-examination.
Stone appeals that the reordering of the witnesses was error
 Holding: Reordering the witnesses here was within the judge’s discretion
under F.R.E. 611(a) to exercise control over the mode and order of trial, such as
to
o Make procedures effective for determining truth
o Avoid wasting time; and
o Protect witnesses from embarrassment and harassment

Rule of Completeness
 F.R.E. 106 gives you the opportunity to interrupt adversary’s presentation to
make sure the contextualizing evidence is brought out at that time
 Beech Aircraft—with letters—if you think the jury needs to hear more of the
surrounding context, 106 allows you to bring it out at that time
 Only applies to matters covered by 106—writing or recorded statement
 Rationale for interruption is based on two considerations:
o 1) Misleading impression created by taking matters out of context
o 2) Inadequacy of repair work when delayed to a point later in the trial

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F.R.E. § 106 Remainder of or Related Writings or Recorded Statements.

If a party introduces all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any other part — or any other
writing or recorded statement — that in fairness ought to be considered at the
same time.

Rule: F.R.E. 611(c) does not give a party the unfettered right to bring an adverse
witness on direct-examination/during case in chief. The Court can make reasonable
limits. Reviewed by abuse of discretion.
Elgabri v. Lekas (1st Cir. 1992)
 Facts: Plaintiff alleged antitrust and tortious interference violations against
various doctors affiliated at four Rhode Island hospitals. At trial, plaintiff called
the defendant Dr. Lekas, the defendant as part of his direct, and used leading
questions under Rule 611(c) exception for adverse witnesses. Court decided to
limit plaintiff’s examination of defendants in his case-in-chief to subject matter
that could not be obtained in any other fashion. Defendants promised that they
would take the stand as part of their case-in-chief, and the Court indicated that
the plaintiff would have ample opportunity to cross-examine them at that time No
limits would be placed on the scope of cross-examination
 Procedure: Plaintiff Elgabri argues that Plaintiffs have unfettered right under
Rule 611(a) to call defendants for his case-in-chief. Rule 611(c) which allows for
leading questions of adverse parties on direct examination, requires the court to
allow direct examination of defendants in his case-in-chief
 Holding: Plaintiff does not have an “unfettered right” to call defendants during
his case-in-chief under Rule 611(a)
 Reasoning: Rule 611(a) places the mode and order of questioning in the trial
court’s discretion. Court of appeals do not disturb decisions regarding courtroom
management unless these decisions amount to an abuse of discretion that
prejudice’s appellant’s case. Rule 611(c) does not give a plaintiff the unfettered
right to call adverse parties for direct examination. Rule 611(c) only requires that
the Court allow a plaintiff who calls an adverse party on direct to use leading
questions in his examination because the witness is presumed hostile

Rule: It is within a Judge’s discretion under F.R.E. 611(a)(2) to deny surrebuttal of a

non-key witness on cumulative facts
U.S. v. Wilford
 Facts: Judge allowed the government on direct to explore additional topics
outside the scope of Wilford’s cross examination of the witness and then the
judge did not permit a re-cross on the new topics.
 Defendants argue that a witness presented by the government brought forward
new facts not raised earlier, and that the defendants were entitled to present
evidence on surrebuttal to counter the witness’ testimony and to impeach his
credibility
 Holding: No error. The new topics on redirect were merely cumulative; judge
within discretion to deny surrebuttal.

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 Reasoning: Here, we find no abuse of discretion by the trial judge in his refusal
to allow the defendants’ surrebuttal. It was not unfairly prejudicial for the trial
court to refuse to allow the defendants to present evidence in surrebuttal. Even
though a party is normally entitled to impeach the credibility of an opponent’s
key witness, in this case, the investigator was not a key witness and his
testimony regarding similarities was merely cumulative

Rule: Court can grant broader scope of cross examination. Part of the Judge’s
large discretion is to permit cross-examination, in certain circumstances, to go
beyond the scope of the direct, as instructed in Rule 611(b). Because cross-
examination is particularly committed to the Trial Court’s discretion.
U.S. v. Carter
 Facts: Carter is charged with two-count indictment of robbing credit union 2x.
Defendants called Riggins as part of their case-in-chief. On cross-examination,
the trial court allowed the government to explore expansive issues beyond the
scope of direct examination
 Defendant objected to these questions at trial on the grounds that they were
prohibited by Rule 611(b), but in each instance the Trial Court invoked its
discretion under the Rule to permit the questions
o Carter argues that the trial court improperly allowed the government to
exceed the scope of direct examination when it the government cross-
examined Riggins
 Holding: No error. 611(b) permits the court this power. 611(b) limits cross but
also grants authority for it to cover new issue.
 Reasoning: although Rule 611(b) limits cross-examination to the subject matter
of direct examination, it grants the trial court discretion to “permit inquiry into
additional matters as if on direct examination. Here, the testimony elicited
challenged some of the alibis that the defendant was presenting, so in light of its
probative value the trial judge did not abuse his discretion by allowing the
government to exceed the scope of direct
o A District Court’s evidentiary rulings are not subject to reversal unless
the defendant can show a clear abuse of discretion
o Moreover, because the management of cross-examination is particularly
committed to the district court’s discretion, the effect is to remove it
from the area of app review

MODE OF QUESTIONING & LEADING QUESTIONS

Introduction
 Leading questions: Suggest the desired answer. Traditionally, leading questions
are allowed on cross-examination, but generally forbidden on direct examination
 Leading question: A leading question is one that suggests a particular answer.
“You’re aware that XYZ took their life yesterday, correct?”
o There will be questions where there are only one of two possible answers
and it’s not really considered leading
 Non-leading question: What is a leading question? What happened next?
Where were you? Then what happened? What does this mean? Why did you order

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a transfer? Open-ended questions. Witness has open page to answer these

questions….
o Not supposed to tell your witnesses what to say, but you can go through
topics you expect to cover so you both have a sense of how this will unfold
at trial
 Why is this allowed on cross? It’s not your witness! You probably didn’t get to
talk to them before trial (especially in criminal). Can’t have had a chance to
prepare their testimony so makes sense from an efficiency perspective. If they
are not your witness
o Tom Cruise example – able to start in immediately with leading questions
even though it’s direct because it’s a hostile witness so permissible under
611.
 There are, however, exceptions:
o (c) When necessary to develop testimony—for example, when witness’
recollection needs refreshing
o (c)(1) – leading questions allowed on cross; and ALSO permissible
o (c)(2) if calling hostile witness or adverse party; can use on direct, you’ll be
given leeway to use leading questions

Rule: A party may use leading questions on direct or re-direct examination of a

“child or an adult with communication problems,” pursuant to a long-standing
exception to Rule 611(c)
U.S. v. Nabors (10th Cir. 1985)
 Facts: Nabors convicted of bank robbery. Key testimony connecting defendants
to robbery was testimony from a 12-year-old. Tray heard the defendants laughing
and talking about an amount of money they had gotten. On direct, prosecution
asked whether either of the defendants said anything after they say Tray for the
first time in the basement. Pros said: “Tray, exactly what did he say?” Defense
objected.
 Defendant argues: The entire line of questioning was an improper and
extremely prejudicial method of interrogation of a child witness
 Holding: Line of questioning/leading questions of child is permitted under
exception to F.R.E. 611
 Reasoning: As a general matter, leading questions are not ordinarily permitted
on direct examination except as may be necessary to develop . . . testimony”,
pursuant to Rule 611(c)
o There is a long-standing exception to Rule 611(c) called “the child
witness or the adult with communication problems”
o Trial court’s ruling deserves deference because they were in the best
position to evaluate the emotional condition of the child witness. The
child’s hesitation to use a “naughty” word on the stand was reasonable.

Rule: Under F.R.E. 611, leading questions are generally undesirable on direct
examination but permissible on Cross. F.R.E. 611 also provides for the exception to
leading questions when a party calls an adverse witness. However, the use of
leading questions must be left to the discretion of the trial judge. A trial court
judge’s decision will not be reversed absent a clear showing of prejudice to the
complaining party.
Ellis v. City of Chicago (7th Cir. 1981)

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 Facts: PO entered Kusar house based on tip where he fatally shot plaintiff’s dog
after it lunged at him. Kusar brought suit, claiming violation of their civil rights.
Plaintiffs claim that trial court erred in refusing to permit counsel for plaintiffs to
use leading questions during his direct examination of POs because they were an
adverse party, thus fall under F.R.E. 611 exception
 Holding: District Court should have permitted leading questions during
plaintiff’s direct examination of POs BUT this does not require reversal
 Reasoning: These officers were employees of defendant City of Chicago during
litigation so they were adverse parties and the trial court should have allowed
defense to ask leading questions. Nonetheless, such a decision should not be
reversed here because there is no showing of prejudice to the complaining party.
o Evidence shows that defense questioned the POs at length, without
leading questions, and there was no evidence of the witnesses being
antagonistic or refusing to answer questions.
o More importantly, the court says, nowhere in defendant’s brief do they
lay out what evidence they would have been able to elicit had they been
allowed to ask leading question

Problems
 6.1 – Two brothers, Dan and Doug, are charged with Bank robber, and are tried
together. Dan calls their sister Wendy and elicits testimony that she went to the
beach with both the defendants on the day of the robbery. Following direct,
Doug’s lawyer cross-examines Wendy. He asks here, “the trip to the beach lasted
all day didn’t it?” The Prosecutor objects that “counsel is leading the witness.”
Should the objection be sustained? What if Doug were unrelated to Wendy?
Answer: Leading questions generally permitted on cross under F.R.E. 611,
however witness isn’t hostile or adverse to any party
o In a sense, it’s not really cross. It’s a witness being called by both
defendants. It’s an additional direct as opposed to true cross
o Judge has substantial discretion under Rule 611(a) and (c) in how to
govern the order and mode of questioning at trial.
 6.2 – Elaine, an eyewitness to a collision between a passenger car and a delivery
van, tells a police officer who reports to the scene that the car entered the
intersection first and then was struck by the van. The car driver later sues the
van driver for negligence and calls Elaine as a witness. On direct examination,
plaintiff’s counsel asks Eliane whether the car or the van entered the intersection
first. Elaine says she cannot remember. Plaintiff’s counsel then asks, “Do you
remember talking to a police officer about the accident?” Elaine then says that
she does. Plaintiff’s counsel then asks do you remember telling the officer that
the car entered the intersection first?” Defense counsel objects on the grounds of
hearsay and improper leading. How should the judge rule? Answer: Direct
examination. Seems to be suggestive—“do y ou remember telling the officer that
the car entered the intersection first?” Permissible because even though direct
examination, it’s permitted under F.R.E. 611(c) “to develop the witness’s
testimony.”
o Roth doesn’t like this tactic
o Lawyer’s question is not evidence. Lawyer can say as many time as he/she
wants, do you remember saying this? If witness refuses to adopt it, there is
no evidence in the record

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o Need the witness to adopt it in order for it to be in evidence

 6.3 – Suppose Elaine’s memory does not fail her at trial; she testifies that the
passenger car entered the intersection and then was struck by the van. On cross-
examination, counsel for the van driver asks whether she is related by marriage
to the plaintiff. Plaintiff’s counsel objects that this is beyond the scope of direct
examination. How should the judge rule? Answer: As a general matter, Rule
611(b) forbids counsel on cross-examination from going beyond the scope of the
subject matter drawn out in direct; however it’s always permissible to inquire
into bias
o It’s not clear what form the question was in: are you related to plaintiff? Or
isn’t it true you are related to plaintiff?
o Either form would be permissible! Leading or non-leading
o Rule 611(b) specifically allows counsel on cross-examination to probe
“matters affecting the witness’s credibility” which do not have to remain
within the scope of the direct

SEQUESTERING WITNESSES
Introduction
 Sequestering is the longstanding tradition of excluding witnesses from the
courtroom until they testify

F.R.E. § 615 Excluding Witnesses.

At a party’s request, the court must order witnesses excluded so that they cannot
hear other witness’s testimony. Or the court may do so on its own. [not everyone
gets to stay in the courtroom for the whole trial]
But this rule does not authorize excluding:
(a) A part who is a natural person [non-natural = corporate or government
entity]
(b)An officer or employee of a party that is not a natural person, after being
designated as the party’s representative by its attorney; [CEO, company gets
to choose who is designated as representative; this does not include attorney
or prosecutor]
(c) A person whose presence a party shows to be essential to presenting the

Rule: F.R.E. 615(b) cannot exclude government investigatory agent

U.S. v. Machor (1st Cr. 1989)
 Facts: Defendants convicted for aiding and abetting with intent to distribute
cocaine—they were arrested for trying to sell to an undercover. Defendants
argue that Agent Riviera should have been excluded while the informant
testified.
 Holding: Majority rule is that F.R.E. 615 curtails discretion of trial court to
sequester the government’s case

QUESTIONING BY A JUDGE

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Introduction
 F.R.E. authorize trial judges to call their own witnesses and to interrogate
witnesses called by the parties, but judges risk reversal when they ask questions
that seem to reveal their own assessment of the evidence
 The underlying concern or idea is jurors must be shielded from the views of
judges
 F.R.E. 614(b) “expressly permits judges to question witnesses. Judges may do so
repeatedly and aggressively in order to clear up confusion and manage trials or
where ‘testimony is inarticulately or reluctantly given.’” (Tilgham quoting Norris)

F.R.E. § 614 Court.

(a) Calling. The court may call a witness on its own or at a party’s request. Each
party is entitled to cross-examine the witness.
(b) Examining. The court may examine a witness regardless of who calls the
witness.
(c) Objections. A party may object to the court’s calling or examining a witness
either at that time or at the next opportunity when the jury is not present.

Rule: Appearance of Judicial Questioning may be so prejudicial to a witness as to be

an abuse of judicial discretion granted under Rule 614(b). Where the Judge’s
questioning may give the jury the impression that the judge doubted the defendant’s
credibility, (Tighlman, citing Wyatt), the prejudice to the defendant may be so great
as to be an abuse of discretion
U.S. v. Tilghman (D.C. Cir. 1998)
 Facts: Defendant convicted of lying in order to obtain disability benefits argues
that trial judge repeated questioning of him prejudiced him against jury and
denied him a fair trial
 Holding: Error. Jury could reasonably have interpreted the judge’s point
comments as reflecting his personal disbelief of and such interference with jury
fact finding cannot be cured by standard jury instructions.
 Reasoning: Juries, not judges, decide whether witnesses are telling the truth,
and because judges have enormous influence over juries. Judge’s questions may
have given jury the impression that the judge doubted the witnessess’ credibility.
“It is one thing to criticize counsel about exhibits; it is quite another to question
the defendant’s credibility on the stand when the central issue is whether he is
telling the truth,”

QUESTIONING BY JURORS
Introduction
 No F.R.E. rule about jury questioning, this has been developed by case law. Most
court houses develop some kind of procedure and some don’t allow it.
 The questions are presented to the lawyers first
 This is an experimentation area.

Rule: Minority/Controversial view: Questioning by jurors is permitted so long as

it is done in a manner that insures the fairness of the proceedings, the primacy of
the court’s stewardship, and the rights of the accused.

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U.S. v. Hernandez (3d Cir. 1999)

 Facts: Hernandez appeals conviction for conspiring to obstruct interstate
commerce by robbery…and receiving or possessing goods stolen from commerce,
hijacking a tractor containing ~500 cases of cigarettes. Defendant challenges
district court practice of permitting jurors to participate in questioning witnesses
during the course of trial
 Holding: Juror questioning in this case was permitted
 Reasoning: Here, the court receives only one question from the jury. It was a
fact question which was not even asked. The court finds that one fact question,
submitted to the judge in writing, but not even asked, cannot be labeled abuse of
discretion. Court also discusses other benefits of juror questioning: Improves the
truth seeking aspect of the jury system; trial judge should be given wide latitude
to manage trials
 Risks of questioning by jurors: turning jurors into advocates, compromising
their neutrality, risk that jurors will ask prejudicial or otherwise improper
questions

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IMPEACHMENT AND REHABILITATION

INTRODUCTION
Impeachment & Rehabilitation Overview
 Basics
o Impeachment — evidence is relevance because it suggests that a certain
witness lacks credibility
 1) Facts discrediting witness may be elicited from the witness herself
on cross
 2) Facts discrediting the witness may be proved by extrinsic
evidence
 *Note: Evidence is relevant (401) even if its only purpose is to
impeach
o Rehabilitation — evidence can be relevant because it rebuts
impeachment evidence
 Extrinsic Evidence: Evidence offered through other witnesses rather than
through cross examination of the witness himself or herself
o Impeachment through evidence other than testimony elicited from the
witness being impeached.
o Through another witness, document, or other type of evidence in order to
prove up what the witness said. Impeachment by extrinsic evidence refers
to impeachment by any evidence other than questions on cross
examination
o Example: A witness who offers reputation or opinion evidence of another
witness’s character provides extrinsic evidence impeaching that witness
 Intrinsic Evidence: Refers to accomplishing something, impeachment, through
witness’ own testimony. Question: “you’ve previously been convicted of a felony,
correct?” A: “yes.”
o It’s only intrinsic if it’s happening through Q&A of the actual witness you
are impeaching

Who May Impeach

 Any party, including the party that called the witness, may attach the witness’s
credibility (607)
 You can impeach your own witness

Who Can be Impeached

 Witnesses
 F.R.E. 806 – when a declarant’s statement is in evidence
o i.e. you can impeach a hearsay declarant

Five Modes of Attach on Witness’ Credibility

 (1) Dishonesty
 (2) Inconsistency
 (3) Bias
 (4) Incapacity
 (5) Specific contradiction

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Limitations on Impeachment
 All other rules of evidence, including 403 balancing, apply to impeachment
 F.R.E. 608 & 609 also apply to impeachment for dishonesty
 610 Religious beliefs or opinions

F.R.E. § 607 Who May Impeach a Witness.

Any party, including the party that called the witness, may attack the witness’s
credibility

F.R.E. § 610 Religious Beliefs or Opinions.

Evidence of a witness’ religious beliefs or opinions is not admissible to attack or
support the witness’ credibility

TYPE OF FEDERAL RULE? EXTRINSIC EVIDENCE

IMPEACHMENT ALLOWED?
Bias or interest No, though it is mentioned Yes, (Abel)
in 408 and 6011 and in
advisory committee notes
Impairment in ability to No Yes, based on common law
perceive: defects in the
witness’s perception or
cognition
Prior crime used to 609 Yes, evidence of the
demonstrate lack of record is admissible if the
credibility prior crime is the type that
may be used to impeach
Truthfulness 608(a) Yes, the witness offering
reputation or opinion
evidence is offering
extrinsic evidence
Contradiction through Yes, but not for collateral
another witness matters. Must pass 403
and will be excluded if the
waste of time substantially
outweighs probative value
Self-contradiction through 613; sometimes will fit Yes, but not for collateral
prior statement by a under 801(d)(1)(A) and matters; must pass 403
witness can be used as substantive and will be excluded if the
evidence as well as waste of time substantially
impeachment outweighs probative value

CHARACTER FOR UNTRUTHFULNESS

Impeachment for Dishonesty

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 As an exception to the general prohibition on character evidence (404(a)(3)),

a witness may be impeached by showing that the witness is generally an
untruthful person
o 404(a)(3)
o F.R.E. 608

F.R.E. § 404 Character Evidence.

(a) Character Evidence
(1) Prohibited Uses. Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance
with the character or train.
(3) Exceptions for a Witness. Evidence of a witness’s character may be
admitted under Rules 607, 608, and 609.

Analysis
F.R.E. 608 & 609
 (1) Calling a character witness to give opinion or reputation testimony and
impeach character of witness 1; and/or
o Winfred, W1, is called by plaintiff to testify about a financial matter
o 608(a): Defendant wishes to discredit Winifred’s testimony. Defendant
may call Claudia, W2, to testify that Winifred has a reputation as a liar
 (2) Inquiring on cross examination of the witness about specific instances
probative of untruthfulness, when it did not lead to conviction
o 608(b)(1): Defendant may also cross-examine Winifred about whether
she ever uses a fake ID
 Trial Courts need to give counsel wide latitude in crossing
o 608(b) applies even if there wasn’t a conviction, i.e. fake ID
 (3) But extrinsic evidence of specific instances may not be offered
unless they led to conviction
o 609 only applies where the witness was convicted of a crime
 Crimen false  609(a)(2)
 Crime punishable by murder or more than 1 year imprisonment 
609(a)(1)
o Rationale: What’s the rationale for being crossed by those acts?
Propensity to disregard rules/laws, more likely to be untruthful than
someone who has not done these things; that’s why we are more okay
with giving latitude on cross on wrongful acts that are not crimen falsi.
Runs counter to character evidence rules, but these are witnesses not
defendants, so we aren’t as concerned about prejudice. We don’t want
to harass witnesses, but certain things are fair game.
 (4) If there was conviction, see rule 609 for additional limitations:
o What kind of case is on trial?
o Who is witness?
o What was nature of past crime?
o How similar is the past crime to the crime on trial?
o How long ago did the conviction occur?

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o How important is the credibility of the witness’ testimony in the context

of the case?

Analysis 2
 (1) Does a party believe that a witness has a general characterological
problem with truthfulness?
o Character Witness: opinion and reputation evidence about the
witness’s character for lack of truthfulness may be presented. Extrinsic
evidence in the form of character witnesses may be used to prove the
opinion and reputation evidence (609(a))
 Winfred, W1, is called by plaintiff to testify about a financial
matter
 608(a): Defendant wishes to discredit Winifred’s testimony.
Defendant may call Claudia, W2, to testify that Winifred has a
reputation as a liar
o Cross-Examination: the witness may be cross-examined regarding her
own specific instances of lack of truthfulness, but this rule does not
apply to convictions (608(b))
 608(b)(1): Defendant may also cross-examine Winifred about
whether she ever uses a fake ID
 (2) Has the witness’s character for truthfulness been attacked?
o Rehabilitate: Extrinsic evidence is allowed to prove the opinion and
regulation testimony that the witness is truthful (608(a))
o Cross-Examined: Negative character witness may be cross examined
regarding the specific instances of truthfulness, but the questioner must
take the answer, and extrinsic evidence; disputing the witness’s answer
is not permitted
o If it has not been attacked  evidence of a witness’s character as
truthful and honest is not permitted (608(a))
 (3) Has a witness, as a character witness, offered reputation or opinion
testimony concerning the lack of truthfulness of another witness?

F.R.E. § 608 A Witness.

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or
supported by testimony about the witness’s reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness’s
character for truthfulness has been attacked.
 Notes: Limits how you can prove up someone’s character; this is like 405(a)—
limiting how you bring out character evidence
 Evidence of truthful character only admissible after witness’s character for
truthfulness has been attacked
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in
order to attack or support the witness’s character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the character
for truthfulness or untruthfulness of:
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(1) the witness; or
(2) another witness whose character the witness being cross-examined has
testified about.
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Rule: Once defendant chooses to testify, he places his credibility in issue and the
Government is free to offer evidence bearing on defendant’s believability as a
witness (F.R.E. 608(a))
U.S. v. Lollar (5th Cr. 1979)
 Facts: Defendant convicted for interstate transportation of stolen property.
Defendant testified at trial. Prosecution recalled one of its witnesses and asked:
“would you believe defendant under oath?” Defendant objected. District Court
overruled.
 Defendant challenges district court erred in allowing witness to offer his
opinion on defendant’s veracity (truthfulness)
 Holding: No error. While the defendant’s decision to testify does not open the
door to attacks on his general character, it does free prosecution to offer
evidence bearing on defendant’s credibility as a witness under 608(a)
 Reasoning: If a criminal defendant takes the stand, they put their credibility in
plan—this is different from character!!

Rule: Conduct probative of truthfulness. When questioning of a witness to bring

out her untruthfulness, the questions/conduct must be probative of whether the
witness is truthful or not (i.e. bribery = no; fraud = yes)
U.S. v. Rosa (3d Cir. 1989)
 Facts: Defendants on trial for cocaine trafficking. Cooperating witness is
testifying for government. Defense knows about things cooperating witness
has done (bribery, fraud)—all to suggest that he someone who is not truthful
and therefore jury should not believe testimony. Trial Court only admissted
questions on fraud on cross examination
 Holding: No error. Prior conduct is available to impeach a witness on if that
conduct is probative of the issue of credibility.
 What did judge permit defense to ask about?
o Fraudulent insurance claim. Probative of truthfulness because
someone who is willing to engage in that kind of fraudulent conduct,
they might not be truthful on the stand here; inferring through
propensity!
o Oath of loyalty to a crime family. Bears on untruthful character
because he is maybe not faithful to one oath but also when you take
crime oath you are taking an oath to commit crimes, and maybe
conceal some facts
 What didn’t judge permit?
o Bribery – EXCLUDED. Not probative of truthfulness. It was
important that defense already had enough to work with in crossing
this witness
 Roth: Something about bribery seems dishonest too. There is a lot of grey area
with these types of crimes.
o Fraudulent insurance claim – probative of untruthfulness, why? He is
lying!
o Bribery of public official not going to truthfulness, why? He isn’t lying,
just asking for favor

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o Counter: Argument that by trying to illegally work around one situation

you are subject to lying here

Rule: No extrinsic evidence of witness fabricating evidence.

U.S. v. White (5th Cir. 1992)
 Facts: Defendant convicted of intent to distribute cocaine. Government
wanted to offer evidence that Northcut had previously offered to fabricate
testimony in a different case. Sounds like something that would be probative,
but trial court did not permit evidence and it was upheld.
 Holding: Per 608(b) you can elicit this evidence only via cross; no extrinsic
evidence.
 Reasoning: Evidence of a witness’s past conduct of being willing to lie on the
stand in a previous trial for consideration from the government is a specific
instance of conduct admissible under F.R.E. 608(b), so long as it is admitted
during cross-examination of said witness rather than through extrinsic
evidence. What made this a problem? They were going to call his lawyer from
the other case, which would constitute extrinsic evidence (608(b)), so even if
it was deemed to be probative it can’t come out this way.

Rule: tk
U.S. v. Aponte (2d Cir. 1994)
 Facts: Defendant convicted of robbing US Postal Service truck. Statements at
issue were sworn statements containing fabrications by government witness
Quiles and other documents giving false descriptions of “robbers” provided by
Quiles.
 Holding: There were pieces of extrinsic evidence of the character and conduct
of witnesses and you cannot prove this via extrinsic evidence per 608(b)
o Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ credibility may not be proved by
extrinsic evidence under F.R.E. 608(b)

Problems
 7.1 - If the defendant in a tax fraud prosecution testifies in her own defense, can
the government ask her on cross-examination about a deceptive resume she sent
to a prospective employer ten years ago? Under what circumstances, if any, can
the government introduce the resume itself?
o Answer: Under Rule 608(b), the government may, on cross-
examination, ask a witness specific instances of conduct that relate to
the witness’s character for truthfulness, more specifically
untruthfulness
o Here, the specific conduct is certainly probative of untruthfulness, as it
is a lie, even though it is to a prospective employee, see White
o 403 Balancing test—judge can decide to let in even though this
happened ten years go if it is sufficiently probative
o The Government may not, however, enter extrinsic evidence of the
specific conduct — here, the resume — unless it resulted in a criminal
charge
o Under such circumstances, Rule 609 governs admission because it’s
extrinsic evidence. Even if trial court exercising discretion allowed in

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questioning, if witness denies it—government still can’t offer resume

unless it led to criminal conviction (609)
 7.2 – Suppose the defendant chooses not to testify, but calls a character witness
who testifies that he knows the defendant well and that she is “upright and
extremely ethical” (defendant can do this under 404(a)—she can choose to put
her character in issue). Can the government ask the witness whether he knows
about the deceptive resume? Under what circumstances, if any, can the
government introduce the resume itself?
o Answer: Here, because the Defendant’s — who has chosen not to
testify — character is at issue (tax fraud case), we are concerned with
propensity. Therefore Rules 404 and 405 govern. Under Rule 404(a)
(2)(A), the defendant may enter into evidence “good character
evidence” from a witness; however that Defendant then opens the door
for questioning by the government
o Question of how probative it was given it was 10 years ago, still 403
balancing
 7.3 - In a prosecution of Gerald for bank robbery, Gerald’s neighbor Max testifies
that Gerald boasted of carrying out the robbery. Gerald later testifies that he had
nothing to do with the robbery, and he denies boasting about it. On cross-
examination of Gerald, the prosecutor seeks to elicit that Gerald knew about, and
did nothing to stop, a plan by Gerald’s business associate Oscar to threaten to
disclose that Max was sexually abused as a child if Max testified against Gerald.
Defense counsel objects to this line of cross-examination. How should the judge
rule?
o Answer: Under Rule 608(b), on cross-examination, an adverse party
can question a witness about specific instances of conduct that bear on
the defendant’s lack of veracity for truthfulness. Certain instances that
are probative of a character of untruthfulness are lies, fraud, false
statements, perjury; however
o The outer layer of such conduct are things like bribery of public
officials, as in Rosa, where the Court held that such conduct was not
probative of untruthfulness
o Here, the court would rule that such evidence of the threat is even less
probative of untruthfulness than bribery in Rosa, and would not let such
evidence in
o In addition, this is massively prejudicial under Rule 403
o Imported into this question is Max’s sexual abuse; and
o An egregious act of silence and complicity by Gerald that speaks more
to the type of person he is than to his character for truthfulness
 7.4 - Harry Potter is on trial at the Ministry of Magic for unauthorized use of
magic by an underage sorcerer. Potter testifies he acted in self-defense. The
chief defense witness, Albus Dumbledore, is asked whether Potter previously
tried to cover up his use of magic on a different occasion by falsely claiming that
the magic was performed by an elf. Dumbledore says the elf was in fact
responsible for the magic and would admit it if called to court to testify. The
Court disallows the elf’s testimony. Would that be the result under the Federal
Rules of Evidence? Answer: Yes, if Dumbledore denies that it happened, the
government cannot then bring in extrinsic evidence through the elf, but must be

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content with Dumbledore’s answer. The government can continue pressing on

the issue on cross-examination however

Prior Criminal Convictions

 F.R.E. 609 allows parties to impeach witnesses with their prior crimes. The
theory is that someone who is antisocial enough to violate social norms and
commit a crime might also lie on the witness stand
o Applies to all parties—whether civil or criminal cases

Analysis
 If you are going to offer extrinsic evidence of criminal conviction, you need to:
o (1) Figure out what prior conviction was for
 Punishable by death or more than 1 year imprisonment? 608(a)(1)
 Crimen Falsi  Analyze under 609(a)2)
o (2) Who is the witness whose character you are trying to impeach
 Witness who is not defendant? 609(a)(1)(A)
 Defendant? 609(a)(1)(B)
o (3) How long ago was it?
 609(b)  more than 10 years have passed…
 TAKEAWAY FROM FRE 609  609 doesn’t make much sense, so there is a
lot of wiggle room to argue on an exam about how prejudicial it is to admit a
prior crime that is not crimen falsi

Crimen Falsi Non-Crimen Falsi

Perjury Murder
Fraud Robbery
False Statements Shoplifting
Forgery  Mus analyze these under 609(a)(1)

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F.R.E. § 609 Impeachment by Evidence of Criminal Convictions.

(a) In General. The following rules apply to attacking a witness’s character for
truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or
by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal
case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a
defendant, if the probative value of the evidence outweighs its
prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be
admitted if the court can readily determine that establishing the elements of
the crime required proving — or the witness’s admitting — a dishonest act or
false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if
more than 10 years have passed since the witness’s conviction or release from
confinement for it, whichever is later. Evidence of the conviction is admissible only
if:
(1) its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the
intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence
of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of

Admissible and Inadmissible Convictions

Rule: Crimes that fit under Rule 609(a)(2) — crimens falsi, or crimes with elements
of dishonest or untruthful conduct — are admissible without judicial administration
of Rule 403 Balancing Test
U.S. v. Hernandez (3d Cir. 1999)
 Facts: Wong charged with violating mail fraud statute. Wong was previously
convicted at least twice of mail and medicare fraud. At trial, prior to putting his
client on the stand, counsel for Wong made a motion in limine to preclude use of
these convictions for impeachment. The trial court stated that the probative
value of the convictions did not outweigh their prejudicial effect; however since
the two convictions were crimes involving dishonesty or false statements — so
called crimen falsi — under Rule 609)a)(2) no balancing of prejudice against
probative value was appropriate

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 Wong attacks as erroneous the legal conclusion of the trial judge that crimen
falsi under Rule 609(a)(2) are admissible as impeachment without reference to
their prejudicial effect
 Issue: Whether a district court has any discretion to exclude, as unduly
prejudicial, using Rule 403 prejudice test, evidence that a witness had previously
convicted of a crime involving dishonesty or false statement?
 Holding: As a matter of textual interpretation and legislative history, Rule
609(a)(2) crimen falsi crimes are admissible without application of a Rule 403
Balancing Test

Rule: Petty shoplifting does not in and of itself qualify as a crime of dishonesty
under F.R.E. 609. F.R.E. 609 is limited to crimes involving an element of
misrepresentation or indication of a propensity to lie.
U.S. v. Amaehci (7th Cir. 1993)
 Facts: Amaechi was convicted of narcotics trafficking based on evidence that he
had taken delivery of a suitcase containing half a kilogram of heroine, Among the
prosecution witnesses was Doreen Bennett, who had taken the suitcase to
Amaechi
 Court excluded evidence of Doreen Bennett’s conviction for shoplifting, where
she was convicted of stealing less than $150, a misdemeanor, and was sentenced
to a three-month term of supervision
 Government argues that shoplifting constitutes a crimen falsi, and thus should
be admitted under Rule 609(a)(2)
 Holding: The Drafters of the Rules of Evidence explicitly intended that Rule
609(a)(2) be limited to crimes involving some element of misrepresentation or
other indication of a propensity to lie and excluding those criems which, bad
though they are, do not carry with them a tinge of falsification. Underlying
purpose of Rule 609(a)(2) is that people who commit fraud, lie, and are
dishonest, are more likely to perjure themselves in Court.
o Because shoplifting is not a crime that would make it more probable
that someone who has stolen is more likely to perjure themselves than
someone who has not, petty shoplifting is not a crimens falsi
o Agree with nine other circuits that to include shoplifting as a crime of
dishonesty would swallow the rule and allow any past crime to be
admitted for impeachment purposes

Rule: Identical prior crime inadmissible against defendant

U.S. v. Sanders (4th Cir. 1992)
 Facts: Sanders indicted for shaking/assaulting fellow inmate. Defendant filed
motion in limine to exclude evidence of prior convictions including a trial for
assaulting/shaking different person. Court declined to preclude government from
questioning him on cross about prior assault, ruling they were admissible under
609(a) and 404(b)—arguing Sanders intent to commit both crimes
 Holding: Evidence inadmissible under 609(a) because of high likelihood of
prejudice. District Court erred in admitting the evidence under 404(b). Admission
was not harmless error
 Reasoning: F.R.E. 609(a) evidence of prior assault has minimal impeachment
value and high likelihood of prejudice

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o F.R.E. 404(b) All the evidence of the prior conviction of assault could
possibly show was Sanders’ propensity to commit assault and general
propensity to commit violent crimes. For such evidence of a prior
conviction to be admissible against a defendant in a criminal
proceeding, several benchmarks must be met
o Does not pass 403: The probative value of the felony to the
defendant’s veracity for truthfulness must substantially outweigh its
prejudicial nature
o Where the prior conviction is the same or similar offense as the
defendant is now being tried for, the Court has recognized that
tremendous prejudice exists
o Here, there is a high likelihood of prejudice — making evidence
inadmissible under Rule 609(a)(1) — because of it would be an
admission of a very similar prior admission

Rule: Where prior convictions are similar, but relevant to a defense — such as alibi
— no prejudice under Rule 403. (minority approach)
U.S. v. Oaxaca (9th Cir. 1978)
 Facts: Defendant charged for bank robbery. Defendant testified. Prosecutor
sought to impeach by introducing evidence that he had two prior convictions—
burglary and robbery. Trial Court permitted questioning about prior convictions.
 Defendant argues admission of prior convictions was more prejudicial than
probative
 Holding: Convictions were for crimes which reflected adversely on defendant’s
honesty and integrity. Thus, they were relevant to the question of Oaxaca’s
credibility, which in light of his alibi defense, was a key issue
 Roth: Could see this doing the other way because there really is a big danger to
defendant in letting in the past identical crime

Rule: tk
U.S. v. Hernandez (3d Cir. 1999)
 Facts: Defendant convicted of conspiring to kidnap and challenges admission of
prior convictions of possession of cocaine and marijuana.
 Defendant Argues prior convictions are related to current charged because
ransom money was to payoff a drug deal. He would suggest that admission of
prior convictions would suggest willingness to commit this drug-related
kidnapping
 Holding: No abuse of discretion. District Court determined that the evidence
ought to be admitted because of its value in assessing the credibility of the
defendant.
o Court was aware there was similarity between the two crimes but given
the importance of credibility in this case, evidence of earlier conviction
ought to be admitted

Rule: Law enforcement witnesses should be treated in the same manner as any
other prosecution witness for purposes of cross examination
State of New York v. Smith
 Law enforcement officer’s prior misconduct

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PRIOR INCONSISTENT STATEMENTS

Introduction
 613(a) – must disclose contents to adversary, on request
o Use this when examining on past statement, without bringing in
outside evidence under (b)
o The examiner may accept the witness’ denial or explanation of the
prior statement but is also given the right to introduce extrinsic
evidence of the prior statement (under b)
 613(b) – rule about using extrinsic evidence to prove up fact of prior
inconsistent statement. Admissible only if the witness is given an opportunity
to explain or deny the statement and adverse party is given an opportunity to
examine the witness about it
o If you are going to use extrinsic evidence of prior inconsistent
statement
o Must give witness opportunity to address that prior inconsistent
statement
 In 613(a) and 613(b), unless the prior statements were under oath and meet the
requirements of 801(d)(1)(A), the CANNOT be admitted for the truth of what
they assert
o Get limiting instruction!
o If what you seek is solely to impeach—rather than the truth—prior
statement does not have to meet 801(d)(1)(A)

F.R.E. § 613 Witness.

(a) Showing or Disclosing the Statement During Examination. When
examining a witness about the witness’ prior statement, a party need not show it or
disclose its contents to the witness. But the party must, on request, show it or
disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence
of a witness’s prior inconsistent statement is admissible only if the witness is given
an opportunity to explain or deny the statement and an adverse party is given an
opportunity to examine the witness about it, or if justice so requires. The

Rule: Identification considered prior statement within 613(b)

U.S. v. Lebel (2d Cir. 1979)
 Facts: Conspiracy to import heroin. Defendant contests failure to allow in
evidence of witness failing to ID at first trial. At the first trial, Government
witness did not identify defendant Lebel; however The next day he identified
Lebel. At the second trial, Lebel’s counsel attempted to elicit this fact of non-
identification of his client by examining Special Agent. Defendant contests
failure to allow in evidence of witness failing to ID at first trial.
 Holding: Non-identification is a statement within the meaning of the Rules;
however error does not appear to require reversal, as it is harmless

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 The rule does not specify any particular order of calling witnesses, and so the
defense should have been able to introduce the evidence during the examination
of Agent Yaniello
o It was impeachment testimony as to a collateral matter
o Counsel for Lebel always had the opportunity of calling Laws to the
witness stand and confronting him with the identification or non-
identification, which was never done
o Third, Laws was on the witness stand for two and one-half days of cross-
examination and counsel did not inquire

Rule: Under Rule 801(d)(1)(A) and Rule 613, “inconsistent statements” are not
limited to diametrically opposed answers, but may be found in evasive answers,
inability to recall, silence, or changes of position. Statement was non-hearsay under
Rule 801(d)(1)(A), and permissible for Impeachment under Rule 613
U.S. v. Dennis (8th Cir. 1980)
 Facts: At grand jury proceeding, Miller testified that he had seen Dennis with a
gun and that Dennis had lent him money at “25 cents on the dollar” and that
Dennis had told him not to tell the grand jury. On direct examination at trial,
Miller not only denied the underlying facts, but also either denied making or
claimed not to recall having made the above statements. Often, his denials in
court went beyond the questions asked and inadvertently revealed his
recollection of his previous testimony. For example, when asked “Did Willie
Dennis charge you interest?”, he replied “No he haven’t he didn’t charge be 25
cents on the dollar”
 Prosecution asked permission to impeach him by prior inconsistent statements
in the grand jury transcript. Dennis objects to the trial court’s admission of
prior inconsistent statements before the Grand Jury by complaining witness
Charles Miller
 Holding: Trial judge correctly admitted the prior inconsistent statements
 Reasoning: Statements made before a grand jury are within the Rule 801(d)(1)
(A) exception for statement given under oath and subject to penalty of perjury,
and the trial judge has considerable discretion in determining whether testimony
is “inconsistent” with prior statements
o Inconsistency is not limited to diametrically opposed answers, but may
be found in evasive answers, inability to recall, silence or changes of
position
o Miller’s testimony was clearly not hearsay according to the criteria in
Rule 801(d)(1)(A) and the trial judge correctly determined that Miller’s
denials of the inability to recall the prior inconsistent statements,
reading them to the jury was proper method of putting them in evidence

Rule: A witness who testifies under oath and is subject to cross examination in a
prior state court proceeding explicitly refuses to answer the same questions at trial,
the refusal to answer is inconsistent with his prior testimony and the prior testimony
is admissible under 801(d)(a)(A)
U.S. v. Truman (2d Cir. 2012)
 Facts: Truman pleaded guilty for third-degree arson for burning down a
building. He confessed that the burned the building down at his father’s
discretion. State Court - Truman confirmed this; federal court – Truman refused

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to answer. Government read portions of state court testimony. He was found

guilty but the trial judge ruled that the state court testimony was actual
inadmissible hearsay.
 Issue: Whether the state court testimony was inadmissible hearsay under 801(d)
(1)(A)?
 Holding: Truman’s state court testimony was not inadmissible hearsay
 Reasoning: IF a witness has testified to facts before a grand jury and forgets or
denies them at trial, the testimony falls squarely within 801(d)(1)(A) exception to
hearsay rule. Truman answered every question posed to him in cross and
therefore was subject to cross examination within the meaning of 801(d)(1)(A)
o 801(d)(1)(A) is designed to protect against the “turncoat witness”

BIAS AND INCAPACITY

Introduction
 No specific F.R.E. rules for bias, however, 401 and 403 are still relevant
 Impeachment for bias: consists of proving that a witness has a reason to lie
or to slant his or her testimony
o Example of bias: being paid or having some ideological tendency to one
side
o No rule about extrinsic evidence offered to prove bias (other than 403)
 Impeachment for incapacity: consists of demonstrating that the memory or
perception of the witness is unreliable

Rule: Gang loyal was prejudicial BUT probative enough. No limits on extrinsic
evidence when showing bias, other than 403.
U.S. v. Abel (1984)
 Facts: A(Abel) + X + E (Ehle) commit bank robbery
o A goes to trial, E testifies against him
o A calls M(Mills) to testify that E said he planned to falsely implicate
A
o On Cross, the government asks M about his membership in prison
gang, along with A + E
o M denies membership, government recalls E, who is going to testify
about his gang, M’s membership in it, and its tenants
 According to Abel, it’s extrinsic evidence. If E was recalled solely to contradict M
about secret prison gang, on notion that membership in gang was probative of
truthfulness, then 608(a) would apply
o Is gang membership probative of truthfulness? One of the tenants
was loyalty to lie for each other.
o Prosecutor: Wants gang tenants to destroy credibility of M, because
the members have sworn loyalty to protect members of the gang, so you
can’t beliebe anything M says, generally, but particularly with extent to
what M says about other members.
 District court allowed it into evidence because the probative value of the
evidence outweighed any prejudicial effect it may have on Abel. Ninth Circuit,
which reversed because admitting evidence that Mills belonged to a perjurious

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organization, to suggest he was committing perjury this time, unfairly prejudiced

him by association absent any evidence of his individual willingness to lie.
 Defendant Argues testimony and about gang membership irrelevant too
prejudicial. Even if evidence relevant to show bias, district court erred in
permitting a full description of the gang and abused its discretion under F.R.E.
403
 Holding: District Court properly admitted evidence. Evidence of bias introduced
for purposes of impeachment is admissible under the Federal Rules of
Evidence.
 Reasoning: Relevant evidence is that which has the tendency to make the
existence of any fact more or less probable. The Court determined that a showing
of bias on the part of a witness would have a tendency to make the facts to which
they testify less probable and is therefore relevant. When you are impeaching to
show bias, there are NO limits on use of extrinsic evidence—whereas with
truthfulness/dishonesty there are—it just must satisfy 403 balancing. As long as
it is actually probative, and not prejusidical, you are not barred from using
evidence in form of another witness or documents
o A district court is accorded a wide discretion in determining the
admissibility of evidence under FREs. Assessing the probative value of
common membership in any particular group, and weighing any factors
counseling against admissibility is a matter first for the district court’s
sound judgement under Rules 401 and 403

Incapacity
 No rules about extrinsic evidence offered to prove incapacity other than 403
 Two Types (via My Cousin Vinny Examples):
o Incapacity via external impediment (something getting in the way of
your vision and disrupting/effecting your ability to see something, i.e. a
tree)
 First Witness: Trees. external impediment with regarding to
incapacity. What is lawyer trying to show about eyewitnesses? He
couldn’t have possibly perceived what he said he perceived. He
quite effectively showed that the witness didn’t have capacity to
see what he claimed he could see
 Doesn’t have to do with witness’s own inherent capacity
 But with line of sight
 Did he use extrinsic evidence to prove this, yes all the
photographs (for our purposes we’re assuming he laid foundation
to bring in photos)
 Permissible because like bias there is not limit on the extrinsic
o Incapacity inherent in witness (eyesight, blindness)
 Second witness: incapacity was inherent in witness
 Is he setting up that they were lying? Likely no
 You can call witness to rehabilitation witness to rehabilitate
character
 BUT that didn’t happen here, it was more honest mistake
 Wouldn’t be proper to rehabilitate her by saying she is an honest
person

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Rule: Prozac. Impeaching party needs to connect the impairment to the witness’s
perception and memory of the events in question when trying to impeach on
grounds of incapacity
U.S. v. Sasso
 Facts: Kramer testified against defendant. Defendant wanted to adduce evidence
that K was depressed and taking Prozac. Kramer witness had been taking Prozac
for years, including during time period when she observed events. Trial court
denied request.
 Incapacity: Defendant argued that Court erred in forbidding him to enter
evidence of Kramer’s use of anti-depressants for purposes of impeaching on the
grounds of incapacity. Argument is that it effects person’s judgement
 Holding: Conviction affirmed. District Court decision proper.
 Reasoning: here, there was no indication that Kramer was delusional or
paranoid, or that her depression had any difficulties in memory or perception of
the events. No indication that her depression or her medications prescribed
would have affected her ability to perceive events or to understand what was said
to her by the defendant
o However if you can show that a particular medication does have an
effect then it would be proper to cross. Lawyer would probably seek
limiting instruction
 Policy risk: Notion that someone was taking anti depressants could be
construed as getting at character—it invites a certain bias against character

Rule: Must be incapacitated at specific moment—and must be able to connect the

alleged thing (impairment/anti-depressant/in this case, drug use) with witness’s
cognitive abilities.
Henderson v. Detella (7th Cir. 1996)
 Facts: Henderson found guilty of murder and attempted murder, based in part
on the testimony of Mona Chavez, who witnessed the murder and was the victim
of the attempted murder. Defendant sought to call a witness to testify that he
had repeatedly seen the government’s key eyewitness use drugs. The trial judge
refused to allow the defense to elicit testimony.
 Holding: Upheld. Not probative of capacity to perceive and remember the
events in question
 Reasoning: Because Chavez’s testimony was crucial for a verdict, her ability to
recall and to recount the events she has observed is incredibly important—and
drugs obviously affects the ability of a witness to perceive. The use of narcotics
can, obviously, affect the ability of the witness to perceive, and thus warrants
appropriate inquiry, however, absent a connection to Chavez’s cogitative
abilities, Jones’s testimony would have served only to impeach her character, a
purpose we have repeatedly deemed improper

SPECIFIC CONTRADICTION
Introduction
 No F.R.E. directly on point. Limits are 401 and 403.

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 Collateral Evidence Rule: consists of demonstrating that some particular

part of what a witness has testified to is false, and then suggests that this
gives the jury reason to disregard the remainder of the testimony
o If one is false, then the rest is false — “falsus in uno, falsus in
omnibus”
o Example: “I remember the day perfectly well, it was my birthday and
I was wearing my favorite silk blouse” – if you can demonstrate that
the witness was demonstrating a red blouse, you might say maybe I
want to put on evidence that she was wearing a red blouse
o You can ONLY offer extrinsic evidence (either by photo of woman
in blouse or person saying I saw her, and she was wearing red) to
prove a fact, if you could have offered evidence to prove that
fact for any purpose other than purpose of impeachment
 So if the color of the blouse doesn’t matter at all, aside from
impeachment, you probably won’t be able to prove it up
 Must find a non-impeachment-related purpose!
o Rationale: We want to avoid mini trials on collateral issues
 Impeachment by contradiction occurs when one side uses contradictory
evidence to challenge a witness about the underlying facts of her testimony.
When proven by extrinsic evidence, impeachment by contradiction must be
independently admissible, that is to say, relevant and admissible for the
light it sheds on the case, and not just for impeachment
 Test: For a collateral matter under the collateral evidence rule asks whether
the fact in question could be prove for any purpose other than contradicting
the witness. A fact is collateral only if it fails that test.

Rule: Collateral evidence rule does not preclude testimony probative of

truthfulness. A party can only offer extrinsic evidence to prove that the witness
said something demonstratively false, if you could use that evidence to prove that
fact for any purpose other than contradiction
Test: Whether the fact in question could be proven for any purpose other than
contradicting a witness
o A fact is collateral only if it fails this test
Simmons v. Pinkerton
 Facts: Plaintiff employed defendant for security work at warehouse. Employee
set fire, employee lied about having taken polygraph test. Plaintiff offered
evidence from another witness of this lie to show untruthfulness. Defendant
claims error to allow impeachment by extrinsic evidence, that this polygraph
issue couldn’t come in otherwise as part of substantive case.
 Holding: Collateral evidence rule does not apply here.
 Reasoning: The “collateral evidence rule” only becomes applicable in
conjunction with a particular type of impeachment — specific contradiction
impeachment.
o The collateral evidence rule does not limit the scope of impeachment by
cross-examination, rather it merely precludes extrinsic evidence of
certain facts that would impeach by contradiction
o Rule 608(b) governs the type of impeachment at issue here — character
for untruthfulness — is exactly tailored to strike the balance that the

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collateral evidence rule was designed to achieve with respect to

impeachment by contradiction
o Rule 608(b) allows cross-examination of a witness about specific
instances of her past conduct, if probative of truthfulness or
untruthfulness; but
o Prohibits the proof of such conduct by extrinsic evidence
o Applying these principles to the testimony at issue here, Rule 608(b)
does not prohibit it
 Roth: Proper to ask the witness about their lie.

Rule: Collateral evidence rule only applies to extrinsic evidence. Someone’s own
testimony is not a collateral issue. Specific contradictions may be prove, even if
collateral, on cross.
U.S. v. Copelin (D.C. Cir. 1993)
 Facts: Defendant convicted of distribution of cocaine. Undercover PO, identified
defendant as the man who sold her some cocaine. Defendant argued that PO was
mistaking him for a man named Bailey. On direct, prosecution asked him
whether he knew Bailey, the man the defendant contends actually made the sale,
was in fact engaging in drug transactions. On the stand, defendant evaded the
questions and said he would recognize drugs based on what he saw on TV.
Prosecution was permitted to ask him about prior positive drug tests.
 Defendant claims government’s use and method of impeachment violated the
ban on the use of extrinsic evidence to impeach by contradiction on collateral
matters
 Holding: district court’s failure to squelch government’s disputed line of
questioning on its own initiative was not plain error. Court says the above
argument is irrelevant because Copelin was impeached by his own statements on
cross

Problems
 7.11 – Abraham Lincoln as trial lawyer. Defending someone in murder case.
Chief witness said “I saw the defendant strike the victim by the light of the moon
at 10pm on day in question.” Question is, could Lincoln offer a Farmer’s Almanac
for date in question to prove there was no moon on that night?
o Let’s say there is an objection collateral evidence rule
o Impeachment value – impeaches by specific contradiction, he says
there was a moon, almanac is extrinsic evidence that says there was no
moon
o Judge might overrule collateral evidence because of Incapacity – if you
couldn’t see due to lack of light, then you couldn’t see what was
happening (like My Cousin Vinny, person who couldn’t see because of
external conditions)
o Now that it is IN you can also offer it for specific contradiction
 7.12 - Suppose a truck collides with a motorcycle and the motorcyclist sues the
truck driver. Ethan testifies that he saw the accident while waiting for a bus, and
that the truck was speeding. Ethan previously told an insurance adjuster that he

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saw the accident while waiting to meet a friend—at least, so the adjuster recalls.
When asked on cross-examination about his conversation with the adjuster,
Ethan insists he told the adjuster he was waiting for a bus. In order to impeach
him, may the truck driver elicit testimony from the adjuster that Ethan said he
saw the accident while waiting for a friend. Suppose the party wants to impeach
Ethan by calling the adjuster.
o Answer: No, this is prohibited by the Collateral Evidence Rule. The
Truck Driver is trying to impeach Ethan through specific contradiction
— by showing a factual error in Ethan’s testimony that infers the rest of
his testimony may be blemished by factual errors and should not be so
highly trusted — and thus the collateral evidence rule applies;
accordingly
o We must inquire as to whether the testimony is as to a collateral issue
and whether evidence is extrinsic or intrinsic
o Here, the collateral issue of whether Ethan was waiting for a friend is
collateral — it’s of no significance to the elements of the action,
and the extrinsic evidence could not be admitted for any purpose other
than contradiction
o Furthermore, although the counsel can press Ethan about the
inconsistency, under the collateral evidence rule, he may not offer
extrinsic evidence
o Roth says this would be a waste of time. There is no per say rule that
bars use of extrinsic evidence to prove inconsistent statement to
impeach but it doesn’t seem worth it! Applying 403, calling the truck
driver does not seem worth it
o Inconsistency here is what he was on his way to do — a different
situation might be if the color of the car involved or if a bus ran a red
light, that would get at heart of litigation. If he said something
inconsistent with that — it’s not collateral. If he gave inconsistent
statement about things that matter most, it’s fair to bring in even if that
extrinsic evidence can’t come in for the truth

REHABILITION
Introduction
 Rehabilitation is the opposite of impeachment
o On re-direct, you want to rehabilitate your witness
o Rehab must be responsive to impeachment
o We don’t want witnesses to be bolstered
 Five Modes of Rehabilitation track—or are the opposite from—the five modes
of impeachment:
o Dishonesty / Honesty
o Inconsistency / Consistency
o Bias / Disinterest
o Incapacity / Capacity
o Specific Contradiction / “Specific corroboration”

Three Means of Rehabilitation

 (1) Asking the witness to explain the impeaching fact

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o Example: “isn’t it true that you submitted a resume to get your current
job that didn’t accurately state where you went to college?”
o Rehab: ask if it was a mistake and explain how witness pulled all other
resumes once she saw the mistake
 (2) By prior consistent statements
o F.R.E. 801(d)(1)(B)
 (3) Through the opinions or reputation evidence offered by a character
witness
o Now you can call a good character witness about your W1!
o What risk do you run? Can attack character for untruthfulness of
second witness under 608(b)(1)—and it might look even worse for you
o Under 608(b)(2), opposing side can ask your good character witness
about specific acts
 Determining Whether Character Has Been Sufficiently Attacked:
o Whether you can call a good character witness is what is at stake!!
o Sufficient: Offering convictions, specific instances of conduct
o Insufficient:
 Inconsistencies – up to trial court, depends on what lawyer is
suggesting
 Not sufficient attack on character for truthfulness (Beard, Drury,
Danehy)
 General bias – unless it’s suggesting you are lying
o *Trial Court has a great deal of discretion in this area. Is the lawyer, on
cross, seeming to suggest something through the questions and the
tone that the witness is lying? OR is the message something else?

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Character for Truthfulness

 Character evidence in support of creditability is admissible under the rule
ONLY after the witness’s character has first been attacked
 Rationale: The enormous needless consumption of time which a contrary
practice would entail justifies the limitation

F.R.E. § 608 A Witness.

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or
supported by testimony about the witness’s reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness’s
character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule
609, extrinsic evidence is not admissible to prove specific instances of a witness’s
conduct in order to attack or support the witness’s character for truthfulness. But
the court may, on cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has

Rule: The use of prior inconsistent statements may constitute an attack on

truthfulness. Rehabilitation through good character witness under F.R.E. 608(a)
is permissible upon
(a) Opinion of Untruthfulness
(b) Reputation of Untruthfulness
(c) Or otherwise — when the impeachment infers that the witness is a liar —
including inconsistent statements showing untruthfulness
Beard v. Mitchell (7th Cir. 1979)
 Facts: Beard was abducted and brutally murdered by PO. PO was accompanied
by an FBI informant on the night of the murder. Plaintiff brought suit after PO
was convicted of the crime, against Mitchell, an FBI agent who participated in
the investigation of PO’s activities. At trial, Beard introduced prior
inconsistent statements by Mitchell as a means of attacking his credibility
under Rule 613(a). Judge then permitted Assistant U.S. Attorney assigned to the
Robinson case to testify at trial that defendant Mitchell had a reputation for
truthfulness [Rule 404(a)(2)(A)]
 Plaintiff contends that admission of Kocoras’s testimony was impermissible use
of reputation evidence under Rule 608(a) of the Federal Rules of Evidence
o Beard concedes he was permitted to impeach on grounds of
untruthfulness; however
o Claims that Rule 608 does not permit the admission of this type of
evidence to counter impeachment accomplished by prior inconsistent
statement — only by a showing of untruthful character
 Holding: Rule 608(a)(2) provides that “evidence of truthful character is
admissible only after the character of the witness for truthfulness has been
attacked by opinion, reputation, or otherwise”

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o The use of prior inconsistent statements may constitute an attack on

truthfulness
o “A basic rule of evidence provides that prior inconsistent statements
may be used to impeach the credibility of a witness,” thus cannot
conclude the trial judge abused discretion

Rule: References to discrepancies in witness’s testimony on cross-examination does

not infer untrustworthiness, and therefore does not fit within Rule 608(a) or
otherwise, prescribing good character witness
U.S. v. Danehy (11th Cir. 1982)
 Facts: Danehy is charged with trying to ram a Coast Guard boat and then
resisting the officers who boarded his boat to arrest him. Danehy was excluded
from introducing evidence of his reputation for truthfulness. Alleged attack on
the defendant’s credibility consisted of a vigorous cross-examination and the
pointing out by the prosecutor of discrepancies between the defendant’s
testimony and that of other witnesses
 Defendant Danehy claims that he should have been allowed to introduce
evidence of his reputation for truthfulness as his credibility had been attacked on
appeal
o Daheny claims that he should have been allowed to bring the
evidence, regardless of lack of prior attack, under Rule 404(a)(2)(A)
 Holding: The pointing out of discrepancy in a witness’s testimony on cross-
examination does not fall under “or otherwise” under Rule 608(b) because it does
not call into question the reputation of the defendant for truthfulness
o Rule 404(a)(2)(A) allows a defendant to introduce a pertinent character
trait to the crime charged, not to bolster himself

Rule: An attack, that consists only of Government counsel pointing out

inconsistencies in testimony and arguing that the accused’s testimony is not
credible does not constitute an attack on the accused’s reputation for truthfulness
within the meaning of F.R.E. 608.
U.S. v. Drury (11th Cir. 2005)
 Facts: Drury charged with murder of hire of his wife. His defense – whole
murder for hire scheme was an ATF role playing exercise. Drury challenges
exclusion of evidence of his truthful character.
 Defendant Argues: government attacked his credibility, thus entitling him to
rehabilitate under F.R.E. 608(a). Drury cites to several questions asked by the
government, claiming that cumulatively, the questions attacked his credibility:
“is that what you want this jury to believe?” and “you don’t think the officer had
any reason to think that you were trying to offering him a bribe?” are two
examples
 Holding: No. The Government was not attacking his credibility by pointing
out inconsistencies

Rule: Good Character Witness may not delve into specific instances, rather they are
limited to
(a) Opinion of Good Character
(b) reputation for Good Character
U.S. v. Murray (3rd Cir. 1997)

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 Facts: Murray convicted of intentional killing in furtherance of continuing a

criminal enterprise. Among witnesses against Murray was a PO informant. After
Murray cross examined PO, government called PO #2, to testify in support of PO
#1’s reliability. Murray objected to this because Brown’s character had not been
attacked by opinion or reputation evidence or otherwise—and even if it had,
F.R.E. 608(b)’s proscription on proof of specific instances of conduct by extrinsic
evidence barred #2’s testimony
o After defendant crosses PO #1, they open door for rehab by PO #2
o Government asks PO #2 how many cases the department has used PO
#1 as a confidential informant on and he says about 65
 Holding: Government went too far in rehabilitating PO #1 by including extrinsic
evidence of PO #1’s character for truthfulness
 Reasoning: 1) Government was permitted to rehabilitate because Murray’s
attorneys attacked Brown regarding his long-standing drug use and
acquaintances with drug dealers, 2) once Brown’s character for truthfulness was
attacked by Murray’s counsel, the government was entitled to attempt to
rehabilitate Brown by opinion or reputation testimony but it was not permitted
under F.R.E. 608(b) to present extrinsic evidence of specific instances of Brown’s
conduct
o The testimony that Brown had “made” 65 or 66 cases was more specific
than can be justified as necessary to establish a foundation.

Prior Consistent Statements

 Why do we worry about prior consistent statements? We want to focus on what is
happening in court, now!
 We don’t want to open the floodgates as to what is happening out of court
 F.R.E. 801(d)(1)(B)

F.R.E. § 801(d)(1).
(d) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and
is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given
under penalty of perjury at a trial, hearing, or other proceeding or in
a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant
recently fabricated it or acted from a recent improper influence
or motive in so testifying; or

Rule: 801(d)(1)(B) permits the introduction of a declarant’s consistent out-of-court

statements to rebut a charge of recent fabrication or improper influence or motive—
and can come in for the truth—ONLY when those statements were made before
the charged recent fabrication or improper influence or motive
Tome v. U.S. (1995)
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 Facts: Tome divorced from daughter’s mother. Tome was awarded primary
custody. Mother is awarded custody for a particular summer. While daughter
living with mother, she made statements that her father abused her — she
alleged abuse happened when she was living with father but tells babysitter,
etc. during the summer she is living with mother. Child testifies at trial — but
it’s limited. Government permitted to lead quite a bit because the child is
having trouble but it’s not “fulsome” testimony. After this extensive
questioning, government called social workers, babysitters, to testify about
statements she made to all of them about the abuse
o Defense case: mom is trying to get custody back. Related to
accusations of abuse because defense suggests that child is lying and
put up to this by mother—make false accusation—so that child would
not be permitted to go back and live with father
o The out of court statements were all made after the motive to
fabricate would have arisen. The district court admitted the statements
into evidence under Federal Rule of Evidence 801(d)(1)(B), which state
that prior statements of a witness are not hearsay is they are consistent
with the witness’ testimony and are offered to rebut a charge of “recent
fabrication or improper influence of motive.” Tome was convicted.
 Issue: Whether a prior consistent statement must be made before the bias or
motive arose, in order to be admissible under Rule 801(d)(1)(B)—and whether
the statements are admissible FOR THE TRUTH
 Holding: Statements inadmissible. Do not come in 1) to rehabilitate, or 2) for
truth. The Prior Consistent has to predate the motive
 Reasoning: When did the motive arise? As soon as she went to live with the
mother. Statements are made post-motive. Motive arises when she goes to live
with her mother
o In this case, the government’s got a really tough road. The government
is stuck with what the witness said on the stand, and now it is not
admissible for the truth of the matter
o The text of the rule does not actually answer the question; however
Rule 801(d)(1)(B) is revised. When you offer for substantive evidence,
there must still be a rigid temporal rule; but When you offer for
rehabilitative purposes, you may enter regardless of temporal element
 As applied to the facts of Tome: Temporal Component is not met here: The
motive arose when the child went to live with her mother. The statement to the 6
witnesses were made after she went to live with her mother. The statements
were therefore made after the motive arose, and crucially, not before
 Breyer Dissent: Doesn’t need to be a rigid rule, it’s a question of relevancy.
Trial Courts can decide how helpful temporality is
 Do not read Tome as saying you could never offer prior consistent
statement.
o If brought in for rehab, they can be used for anything, including the
truth
o Statement made pre-motive—i.e. if she told someone her father abused
her BEFORE she went to live with her mother—then statement made
before turning point is very rehabilitative

F.R.E. 801(d)(1)(B)
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 If such statements came in to rehab a witness, it’s unlikely a jury would cabin
the statements, so we let them in for truth, too
 If you are a party that called the witness, if you know they previous said a
consistent version—you need to try and make sure the prior consistent
statement was PRE-MOTIVE
 Think About:
o What is the motive/reason to lie
o When did the motive start/when did it arise
 In Tome, the motive was the mom wanting daughter to lie about
assault so mother could have sole custody! Motive arose when
daughter moved in with mom. Motive arose after move. Statement
was before move in
 Tome reads the timing requirement into the rule

Analysis
 (1) 801(d0(1)(B)
o When did motive arise
o Timing of motive
o When was statement made—in order to come in, statement must be
made pre-motive (Tome)
o Once it comes in, it also comes in for the truth
o Limiting Instruction
 (2) If fails, try other hearsay exception
o F.R.E. 807?

Bias

Rule: Disprove bias. Evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked. (F.R.E. 608). So it is not
considered “bolstering” when a defendant attacks the bias of the government’s
witness, if he was the one to first attack that character.
U.S. v. Lindemann (7th Cir. 1996)
 Facts: Horse dies. Insurance payout is $250,000. FBI gets tip that there is
conspiracy between Burns and Barney Ward to kill horses for pay. Burns gave
FBI information indicating Lindemann, partial owner of horse in Q, arranged
horse’s death for insurance payout. Govt cooperating witness, Burns, is an
informant.
o Attack on bias: Defense attacks Burns on cross by suggesting Burns
had bias in testifying against Lindemann. Burns wouldn’t have gotten a
plea deal if he didn’t snag a “big fish” like Lindeman. You’re biased to
name Lindemann because that’s how you got the deal!
o Rehab: Government rehabilitates by difusing the bias! Burns by
showing how extensive Burn’s cooperation was with the Government—
discussed about 30 other people also involved with government—and
that Lindemann meant little to the government. Brings out other facts
that show that Lindemann was not a big part of the motivation here —
yes, he’s cooperating against Lindemann, but he has a lot of other
things to participate in

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 Defendant argues Burns’ testimony was inadmissible because it was essentially

“bolstering”
 Bolstering: practice of offering evidence solely for purpose of enhancing a
witness’s credibility before that credibility is attacked. Such evidence is
inadmissible because it was the potential for extending the length of trials
 Holding: The Trial Court correctly admitted this rehabilitation evidence
o Evidence was relevant because it diffused the alleged bais that was
raised by the Defendants through impeachment, under Rule 401
 Reasoning: Lindemann’s suggestion that Burns falsely implicated him to obtain
a plea deal was certainly an attack on the credibility of Burns’ testimony and was
an attempt to show that Burns had a bias, thus Lindemann was entitled to
suggest this theory BUT the direct consequence of this was that the government
was entitled to introduced evidence to rehabilitation Burns on the issue
 Note: Sometimes government can offer cooperation agreement which say that if
they don’t tell the truth, they lose the benefit of cooperation agreement. It’s
permitted as rehab.

Incapacity
 If witness is accused of having poor ability to recall what happened because
they had several drinks in question, for example, on the night in question
 Rehab: How many drinks did you have? 3. Were you able to do something else
that evening? How many drinks do you have regularly? To bring out that it
wasn’t incapacitating
 Witness suffered brain trauma a year before testimony. Suggestion is they
don’t have reliable memory by virtue of this accident. How might you
rehabilitate a witness? Show that post-injury, witness had capabilities
 Best evidence: medical evidence/expert; ask questions that bring out that
they are functioning in a way that is normal
o Difuse extent of incapacity by showing these things
 Prior consistent statement: if you knew witness had given account of
incident before accident that is consistent. It knocks legs out of charge that
their memory is impaired if you can show this prior consistent statement.

Specific Contradiction
 Rehab: Explain why they might have gotten a detail wrong. Black blouse
example – ask her: what were you focused on the day of the accident? Were
you focused on what you were wearing? Makes it seem much more relatable
about why witness might have been wrong about a detail

Impeachment & Rehabilitation Problems

 7.13 – The plaintiff in a medical malpractice case calls a physician as an expert

witness. The physician admits on cross-examination that she is being paid $5,000
for her testimony. Can the plaintiff now call a witness to testify that the physician
is honest or has a reputation for honesty?
o Answer: Under Rule 608, a party may introduce opinion or reputation
evidence of good character for truthfulness, once their character for
truthfulness has been attacked — impeachment evidence that opens the

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door to this sort of rehabilitation isn’t just evidence that was entered
under Rule 608, but anything that indicates that the witness is a liar,
Mitchell
o Plaintiff argues: the defendant has attacked the physician’s
character for truthfulness, despite impeaching on the ground of bias
and prejudice, because he is suggesting that the Physician will lie under
oath for the right sum of money. Therefore, truthfulness has been
attacked and this permissible under 608
o Defendant argues: this is like Daheny and Drury, where the
impeachment was not related to trustworthiness, and thus no good
character witness could come in under Rule 608.
o Roth would side with the non-Mitchell interpretation of Rule 608
o Under 608, a witness’s credibility can be attacked by testimony
about witness’s reputation—but if you want to offer evidence of
truthful character, you have to wait until evidence of witness’s
character has been attacked. Just bringing out fact that expert
has been paid, is not attacking truthfulness
 7.14 – The prosecution in shoplifting case calls a department store employee
who testifies that she saw the defendant while in a dressing room, cut price tags
from clothing and stuff the clothing in her shopping bag. On cross-examination,
defense counsel suggests that it would have been impossible for the witness to
see what she claims to have seen through the slats of the dressing room door.
Can the prosecution now call the employee’s supervisor to testify that, in the
supervisor’s opinion, the employee would not lie under oath?
o Answer: First, we ask – has the witness on cross, or has the suggestion
been made that the jury shouldn’t trust the person. Here, the nature of
cross was to suggest that witness couldn’t have seen what witness
claims to have seen.
o This is more clear cut — allowance of good character evidence here
under Rule 608 would be bolstering, just as in Daheny
o Impeachment was on grounds of capacity — that a temporary
obstruction of witness’s perception would have made it impossible for
witness to perceive the events at issue
o This is not probative of veracity for truthfulness, and thus does not open
the door up to Rule 608 rehabilitation
o Can’t bring in evidence of truthful character when capacity has been
attacked
 7.15 – In a bank robbery case, a teller who saw the robber testifies that he had a
moustache. On cross-examination, the teller admits that two days after the
robbery he told a police detective that the robber had no facial hair. The
prosecution then calls the bank manager and seeks to have her testify that,
several hours after the robbery, the teller told the bank manager that the robber
had a bushy moustache
 Answer: No apparent motive to fabricate has been raised as in Tome;
accordingly temporality is irrelevant and it can be admitted for substantive
evidence under either the new or the old Rule 801(d)(1)(B)
o New version of 801(d)(1)(B)
o Impeachment? Inconsistency. Showing that his story changed, so
maybe he shouldn’t be trusted.

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o How does bringing out the prior consistent statement respond to this? It
rebuts the charge of being inconsistent. At least we can show, closer to
when robbery happened, he said something closer to what he said on
the stand
o This shows that else in time, he had it right
o Seems responsive in two ways
o Truth – important for truth in terms of identifying robber
o Bushy moustache – level of detail

1. At D’s trial for securities fraud, D calls W to testify that W has worked with D
for ten years and that D is, in her opinion, honest and trustworthy. On cross-
examination of W, may the prosecutor ask W questions to bring out that W and D
have been in a romantic relationship for two years? If the prosecutor is permitted
to ask such questions, can D then call C, a character witness, to testify that W’s
reputation for veracity is excellent?
a. Answer: D calls W which comes in under F.R.E. 404(a)(2)(A) admitted
through 405(a) by reputation; the defendant is offering evidence of the
defendant’s pertinent trait through W’s opinion of D. – clarify with Roth
how this is coming in to begin with
i. Prosecution can then impeach W through bias, by showing that W
and D have been in a romantic relationship
ii. Rehabilitation: No, just by attacking bias can’t bring in truthful
character
2. D is charged with armed robbery. Trial commences on September 1, 2007. If D
testifies in his own defense that he was somewhere else on the day of the
robbery. Which, if any, of his prior convictions are admissible to impeach him?
a. A 2005 felony conviction for armed robbery. Analyze under 609(a)(1)
(A) – felony, which takes us to (a)(1). (a)(1)(B) if defendant is witness
i. In 609, we’re offering criminal convictions of WITNESS
1. (1)(A) – witness on stand not defendant; must be convictions of
witness, not defendant
ii. 608 – witness puts character in case under 404, but is NOT ON THE
STAND

iii. 609(a)(1)(B) – witness is defendant; impeaching with conviction – we

make a distinction under 609 (felonies considered more serious) and
non felonies; someone more willing to commit serious crime is more
likely to disobey oath;
1. We want to avoid propensity—this is the kind of person who
commits armed robbery and is therefore more likely to lie
2. But how is it probative with reflecting on the propensity?
b. a 2000 misdemeanor conviction for possession of marijuana; no
c. a 1999 misdemeanor conviction for shoplifting; not the nature of
truthfulness and not felony, so no
d. a 1998 felony conviction for perjury; yes – crimen falsi
i. General Analysis: F.R.E. 609(a)(2) governs. We look at the elements
of the conviction. If one of them requires proving dishonest act or
statement then we have crimen falsi so we analyze under (a)(2)
REGARDLESS of punishment. If it falls under crimen falsi it is
ADMISSIBLE, full stop, no 403 balancing

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e. a 1985 felony conviction for manslaughter.

i. Analyze under 609(b) because more than 10 years
ii. (b)(1) – too prejudicial because of the severity of the crime
f. If D does not testify in his defense, are there any circumstances in which
evidence about any of these prior convictions would be admissible if
offered by the government?
3. 3. P sues D for injuries arising from an automobile accident. P calls W,
who testifies that he was driving from work to home, came to the
intersection in question, and saw D drive through a red light into P’s car.
On cross-examination, D’s counsel asks W: “Isn’t it true that you weren’t
driving directly home, but had stopped at a bar and had eight drinks on
the way?”
a. If W denies the accusation, may D call W2, who was with W in the bar, to
say that he saw W have eight drinks in the bar, before the accident
happened? Answer: If W denies, D is stuck with W’s responses
b. What result if the question of W is instead, “isn’t it true that you weren’t
driving home, but were on your way to meet your mistress for a secret
rendezvous? If W denies it, can lawyer call the hotel clerk who saw W at
hotel with the mistress? Answer: This is irrelevant, unduly prejudicial
4. 4. D is on trial for murder by arsenic poisoning. Critical to the state’s
case is a supply of arsenic found in D’s kitchen cabinet. In his defense, D
calls W to offer an innocent explanation for the arsenic. W testifies that
he frequently saw D administer arsenic to rats in a basement cellar where
D kept provisions. May the prosecution, in rebuttal, call O, the owner of
the cellar, to testify that provisions were never kept in the cellar?
a. Answer: D calls W; Pros wants to call O to impeach W
b. F.R.E. 608(b) extrinsic evidence is not admissible to prove specific
instances of a witness’
c. O’s testimony can probably come in because it is relevant to whether D is
telling the truth and under 403, and probative value is NOT substantially
outweighed by the amount of that till be consumed calling O. It’s crucial to
the case!
d. BUT it’s also not one of the categories of rehabilitation
5. P sues D for negligence after falling on the sidewalk outside D’s home. D
calls W as a witness to testify that W saw P “fall” deliberately. To
discredit W, P calls X as a rebuttal witness.
a. May X testify that W’s reputation for veracity is bad? Yes, character
witness may testify that the impeaches witness (W) has a reputation for
untruthfulness.
b. May X testify that, in his opinion, W is a person who is not worthy of belief?
Yes, opinion is another way that X can impeach W’s through opinion of W
not being worthy of belief.
c. After X has testified, may D call another witness, Z, to testify that W’s
reputation for veracity is good? Yes, this is rehabilitation
d. While cross-examining Z, may P inquire “have you heard that W submitted
false information to a bank in a loan application?”
e. If Z has not heard about such a false loan application, can P offer proof of
the application by calling a witness from the bank or offering the loan
application itself?

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f. While cross-examining Z, may P inquire, “isn’t it a fact that you (Z)

submitted an application to a bank for a loan that contained false
statements about your income?”
6. In 2008, baseball star Roger Clemens testified before a Congressional Committee
that was investigating steroid use in professional baseball. Another player, Andy
Pettitte, had previously testified before the Committee about conversations he
had had with Roger Clemens during the time period when Clemens was
suspected of using steroids, in which Clemens admitted to using steroids. The
Committee also heard from Pettitte’s wife Laura that Pettitte had told her about
those conversations with Clemens. Please watch the first minute of the following
clip from Clemens’ testimony before the Committee and think about why (having
been well prepared by his lawyers), Clemens may have framed his discussion of
Andy Pettitte the way that he did.
a. How did Roger Clemens talk about Andy Pettitte? Incapacity attack. He’s
saying that Pettitte misremembered.
b. If Clemens attacks him for truthfulness, it opens the door to rehabilitation
—other side can bring in testimony about how he is truthful; you’re
inviting, as a matter of fair response, you’re inviting rehabilitation in
c. You’re also inviting prior consistent statements
i. If suggestion is made that Andy is making this up, in a sense to get a
better deal with Congress, opens door to prior consistent statements
d. That’s why Clemens is saying “Andy is mistaken.”
e. Can you then use prior consistent statement to rehabilitate from that
charge?
f. If suggestion is that Andy misheard me, it’s a clever strategy to box out
prior consistent statements
g. Shows limits of 801(d)—prior consistent statements must be RESPONSIVE

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COMPETENCE

GENERALLY
Introduction
 Competent: A witness is competent if he or she is allowed to testify
 Modern View: Practically everyone should be allowed to testify and the jury
should judge a witness’ credibility for itself. It’s no longer categorical, but we do
have impeachment.
o Historical approach was categorical: Children, Criminals, Atheists, Spouses
 Limitations on testifying still exist—you need personal knowledge (602) and to
take an oath (603). Additionally, where these is a state evidence rule about
competence, and we are in federal court on diversity grounds, the state rule
applies (601).
 Rationale: testament to the extraordinary faith our system places in viva voce
evidence—faith, that is, that truth is best found by hearing from witnesses in
open court

F.R.E. § 601 Competency to Testify in General.

Every person is competent to be a witness unless these rules provide otherwise.
But in a civil case, state law governs the witness’s competency regarding a claim
or defense for which state law supplies the rule of decision.

Rosen v. U.S. (1918)

 Facts: Competency of witness questioned. Witness in question had pleaded
guilty to forgery.
 Holding: Court overrules common law approach
 Reasoning: In States v. Reid – a person found guilty of forgery and sentence,
was rendered incompetent until that person was pardoned

Rule: Every witness is presumed competent to testify (F.R.E. 601), unless it can be
shown that the witness does not have personal knowledge of the matters about
which he is testifying, does not have the capacity to recall, or that he does not
understand the duty to testify truthfully
U.S. v. Lightly (4th Cir. 1982)
 Facts: McKinley sustained stab wounds from an assault in prison. Fellow
inmates, Lightly and McDuffie were investigated, but only Lightly was formally
charged. McDuffie was not indicted by grand jury because a court appointed
psychiatrist found him incompetent to stand trial. Lightly was convicted of
assault with attempt to murder. Defense attempted to have McDuffie testify—
McDuffie would have testified that only he and not Lightly
 Holding: Lightly should have testified, new trial ordered
 Reasoning: McDuffie had a sufficient memory, understood the oath, and could
communicate what he saw; on this record it was improper for the district court to
disqualify McDuffie’s testimony

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PERSONAL KNOWLEDGE

F.R.E. § 602 Need for Personal Knowledge.

A witness may not testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may consist of the witness’s own
testimony. This rule does not apply to a witness’s expert testimony under Rule

Introduction
 Witnesses must testify from personal knowledge. Without the personal
knowledge requirement, the hearsay rule could be easily evaded
o Instead of testifying, “I heard that Oliver was dealing cocaine out of his
apartment”
o You could just say: “Oliver was dealing cocaine out of his apartment”
 Determining whether a witness has personal knowledge often involves deciding
whether to believe the witness. Personal knowledge is no an absolute, but may
consist of what the witness thinks he knows from personal perception (Wigmore)

Rule: A witness may not testify to a matter unless evidence is introduced sufficient
to support a finding that the witness has personal knowledge of the matter.
Testimony should not be excluded for lack of personal knowledge unless no
reasonable juror could believe that the witness had the ability and opportunity to
perceive the event that he testifies about.
U.S. v. Hickey (6th Cir. 1990)
 Facts: Hickey charged with conspiracy to distribute cocaine. Eventually, there
was a mistrial. Investigation then centered on Ventimiglia, who was arrested,
took plea deal, and testified for government against his associate Hickey.
Ventimiglia is a self-professed cocaine addict.
 On Cross, defense brought this out, as well as several inconsistencies in his
testimony, claimed lack of memory, uncertainty as to details. In ruling on
defendant’s motion for acquittal the District Court stated that Ventimiglia’s
testimony alone would not support a guilty verdict. The motion was denied
because the government had introduced other evidence that supported the fact
that Hickey was a seller
 Holding: Ventimiglia’s testimony admissible; no abuse of discretion
 Reasoning: Despite how Ventimiglia’s testimony may be unbelievable to some
and in spite of the possibility that his perception was sometimes impaired, a
reasonable or rational juror could believe that Ventimiglia and the other
prosecution witness perceived the course of events to which they testified

OATH OR AFFIRMATION
Introduction
 Aside from personal knowledge, the only other general prerequisite for
competence is that the witness swear an oath to tell the truth

F.R.E. § 603 Oath or Affirmation to Testify Truthfully.

Before testifying, a witness must give an oath or affirmation to testify truthfully.
It must be in a form designed to impress that duty on the witness’s conscience.
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Rule: A witness can create her own oath. Court must look for whether “it impresses
a duty on the witness’s conscience.”
U.S. v. Ward (9th Cir. 1993)
 Facts: Ward on trial for tax evasion. Ward filed a motion to challenge the oath,
changing “truth” with “fully integrated honesty.” Ward believes “honest” is
superior to truth
 Court analyzes this based on court’s interest in administering its precise oath
yielding to Ward’s First Amendment right
 Holding: District Court abused its discretion.
 Reasoning: Ward’s own oath superimposed on the traditional one would have
taken nothing away from the commitment to tell the truth under penalties of
perjury, and, indeed, in the defendant’s mind—imposed upon him a higher duty.
Court’s concern is witnesses created loopholes to commit perjury.
Rule: There is no hard and fast rule about when a child is old enough to testify—
federal statute provides for a hearing as to the child’s capacity to tell the truth. If
witness has appreciation for what oath means, she should be permitted to testify
U.S. v. Allen J (10th Cir. 1997)
 Facts: Allen J juvenile delinquent for engaging in sex with a juvenile. To counter
the victim’s competency, Allen asserted that the victim suffers mild mental
retardation. Circuit applied test for determining the competency of a child
witness established by the Supreme Court
 Holding: District court did not abuse its discretion in permitting the victim to
testify
 Reasoning: Inconsistencies in victim’s story or problems with her testimony
raise questions of credibility, not competence…the credibility of a witness is a
question to be determined by the trier of fact
 Who decides? Does the judge have to find that the witness was there? Or is it
104(b) by a reasonable jury? Reasonable jury. Whole point is to judge them
based on what they are saying

Problems
 8.1 – The key prosecution witness in a criminal trial admits on cross-examination
that he has been surreptitiously consuming opium throughout the testimony. The
defense attorney asks the judge to strike the witness’s testimony on the grounds
of competence. Should the request be granted?
o Answer: Not incompetent, it’s incapacity and should be weighed and
credited, attacked in impeachment not competency. Judge should allow
him to continue and then attorneys can bring it out on cross
o If I am the lawyer, I don’t want the witness taking the stand but Roth
says she doesn’t know if it’s a competency issue
o Counter argument: Truth serum, LSD, arguing that witness would be
more truthful
o Seems like witness will be competent, unless it comes to point where
they are really unable to answer the questions. There will be some
individual judges who will be more scrutinizing depending on their taste
for appellate review.
o All of this will be brought out on cross to diminish credibility, but lawyer
might just not even allow them to testify on that day

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 8.2 – The plaintiff (book had typo) in a civil case wishes to testify. He swears to
tell the truth and nothing but the truth, but will not swear or promise to tell “the
whole truth.” He explains that “no one ever knows the whole truth about
anything.” Defense counsel objects to the plaintiff’s testimony on grounds of
competence. How should the judge rule?
o Answer: Is this witness trying to create a loophole?. Should permit,
because there is no appearance that he is trying to find a loophole that
will allow him to lie without risk of perjury or penalty
o Argument for not sufficient – maybe he should say “whole truth as I
know it” might be finding a loophole in terms of telling a white lie
o Judge could follow up with a few questions – are you going to testify to
the truth as far as you know? Do you understand if you say something
that’s not the truth as far as you know?
o Roth thinks tough call but if Roth were judge she would do some follow-
up questions
 8.3 – The defendant in an automobile accident case calls the plaintiff’s five-year-
old son, who was four at the time of the accident. The plaintiff claims her son is
incompetent to testify, because his memory of the accident is too vague, because
testifying about it would traumatize him, and because he does not understand
what it means to swear or the promise to tell the truth
o Answer: This isn’t about oath, but whether the child is able to relate
facts based on personal knowledge. The judge has a role in determining
that a reasonable jury could find that the kid has personal knowledge,
under Rule 603
o Ask the kid questions similar to Allen J – do you understand what it
means to tell the truth? Do you understand the difference between the
truth and a lie?
o Mother’s statements, while something judge would consider, will not be
dispositive; statute that governs child witnesses takes into account
trauma and how important the child’s testimony is in the case

COMPETENCE AND THE CONSTITUTION

Rule: Restrictions on a defendant’s right to testify may not be arbitrary
Rock v. Arkansas (1987)
 Facts: Rock charged with manslaughter. When PO arrived on scene, they found
her husband Frank on the floor with a bullet wound in his chest. Rock could not
remember precise details of the shooting. She undergoes hypnosis twice. After,
she was able to remember she had her thumb on the thumb of the gun, but not
the trigger. Defense got gun inspection which revealed that gun was defective
and prone to fire. Prosecutor filed motion to exclude this evidence
 Defendant Argues: Constitutional right to testify violated
 Holding: Arkansas’ per se rule excluding all posthypnosis testimony infringes
impermissibly on the right of a defendant to testify on his own behalf
 Reasoning: Arkansas followed the lead of other state that exclude hypnosis
evidence, but in those states they exclude based on a witness, not defendant.
Court finds that Arkansas fails to apply the appropriate constitutional test. Court
is not saying all hypnotic testimony will be admissible.

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 Trial Court Should Have: Looked into corroboration of evidence which gives
greater credibility to hypnotic testimony and takes away from unrealiability in
this case.

Problem p. 479
 CA Courts have not applied §795(a) to the testimony of criminal defendants.
o If so applied, would the statute be unconstitutional? This statute is
everything the witness could already remember before hypnosis
 It’s making inadmissible anything witness recalled after hypnosis
 Similar to Arkansas approach but a little more demanding
 This has not yet been applied to a criminal defendant
 Seems too restrictive; Strong argument that it would be
unconstitutional as applied—not to every criminal case—but to
criminal defendant where criminal defendant’s testimony necessary
to the case
 Defendant can argue Due Process right and 6th Amendment right to
call witnesses in your favor; Rock had right to testify in his own
defense
o Is the statute constitutional as applied to other witnesses called by
criminal defendants? Not against witness, as court says in Rock, where
other states have that exclusion

JUDGES, JURORS, AND LAWYERS

F.R.E. § 605 Judge.

The presiding judge may not testify as a witness at the trial. A party need not
object to preserve the issue.

F.R.E. § 606 Juror.

(a) At the Trial. A juror may not testify as a witness before the other jurors at the
trial. If a juror is called to testify, the court must give a party an opportunity to
object outside the jury’s presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment. [this is post-
trial]
(1) Prohibited Testimony or Other Evidence. During an inquiry into the
validity of a verdict or indictment, a juror may not testify about any
statement made or incident that occurred during the jury’s deliberations;
the effect of anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment. The court may not
receive a juror’s affidavit or evidence of a juror’s statement on these
matters.

A juror may testify about (F.R.E. 606(b)(2) Exceptions):

 (A) extraneous prejudicial information was improperly brought to jury’s attention
o Example: prior confession/conviction not in trial but found out about it
 (B) an outside influence was improperly brought to bear on any juror; or
o Example: Threat to a juror family member or bribe

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 (C) mistake was made entering verdict on verdict form

 Rationale: Efficiency concerns. Litigation will go on forever if jurors can testify
about what’s happening in deliberation room. We don’t want to stifle speech in
deliberation room.
 CA Approach: Statements by jurors can be considered.

Rule: Drugs/alcohol during jury recess not enough to reverse verdict

Tanner v. U.S.
 Facts:. Tanner was a criminal case and defense counsel found out that jury was
partying, drinking, doing drugs, and selling drugs to each other.
 Holding: This was not enough to invalidate the verdict.
 Petitioners argued 606(b)(2)(B) substance abuse as an outside influence but
the court refuses to stretch the language of the rule as such—seems no more like
an outside influence than is poorly prepared food or lack of sleep (not a bribe or
threat)… would be a slippery slope
 Policy: Policy interests against post-verdict inquiries. Legitimacy of the verdict
and the public at large.

Rule: F.R.E. 606 applies to inquiries into the verdict.

Warger v. Shauers (2014)
 Facts: Warger was riding motorcycle on highway when truck driven by Shauers
struck him from behind. Warger sustained serious injuries and sued Shauers for
negligence. Jurors were asked whether they would be unable to award damages
for pain and suffering or future medical expenses. One juror, Whipple, answered
no and later became foreperson. Jury found for driver.
 A juror later came forward that Whipple behaved inappropriately during
deliberations. This juror signed affidavit saying that during deliberation, Whipple
told the jurors that her daughter was in a collision and the man died and if “her
daughter had been sued, it would have ruined her life.” Warger moved for a new
trial.
 Holding: Juror testimony precluded under F.R.E. 606(b), when a party is seeking
a new trial on the basis of juror dishonesty during voir dire. Court also held the
rule did not raise any issue of constitutionality because juror impartiality
continued to be assured by either party’s ability to bring forward evidence of
juror bias
 Reasoning: Court focuses on “external” vs. internally what goes on in
deliberations. Whipple’s daughter’s accident may well have informed her general
views about negligence, but it did not provide either her or the rest of the jury
with specific knowledge about Warger’s collision. Lawyers made a novel
argument about voir dire—that she lied during voir and should be disqualified,
they were trying to go be ex post

Rule: Unless it is absolutely necessary, a Lawyer should not be testifying as a

witness on behalf of their client. Here, where the lawyer’s investigator was available
to testify, it was a sufficient alternative to the lawyer’s testimony and thus the
lawyer should not be permitted to testify
U.S. v. Ewing (7th Cir. 1992)
 Facts: Ewing convicted of drug trafficking. Ewing wanted his attorney to testify
about notebooks found at Ewing’s residence. Attorney was prepared to testify

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that six weeks before trial, when she and a paralegal examined the evidence
gathered by the police, Ewing’s name did not appear on either notebook.
 Holding: NO abuse of discretion in prohibiting attorney from testifying.
 Reasoning: The Rule does not render an advocate incompetent, but merely vests
the trial court with discretion to determine whether counsel may appear as a
witness without withdrawing from the case.
o Given the strong presumption against allowing counsel to testify as a
witness, and the fact that the defendant was able to present Stottlar’s
(paralegal) key eyewitness testimony, it was not an abuse of discretion
for the district court to rule that the attorney’s testimony would have
been cumulative

Problems
 8.5 – Following her client’s conviction, an attorney receives a letter from one of
the jurors, admitting that the jury treated the deliberations as a joke and spent
the entire time singing camp songs. A courtroom deputy who sat outside the jury
room tells the lawyers that throughout the deliberations he heard laughter and
boisterous singing. In support of his motion for a new trial, the defendant seeks
to introduce the letter and to have both the juror and the deputy testify
o Answer: Two sources of evidence: 1) letter from juror, 2) deputy who sat
outside room and heard jurors signing and laughing
o Letter: can’t be let in; doesn’t fall within exception; it’s not an outside
influence. Accordingly, the Jury singing camp songs instead of vigorously
deliberating would not constitute an “extraneous influence” within the
meaning of Rule 606(b)(2)(A)
o Deputy: If you have other sources of evidence about what happened in
jury room, those can be received; it’s just an exclusion on jurors. Deputy
affidavit could be considered by the court, but Roth says she’s not sure
how far it would get you
o As long as the deliberations haven’t started, you can sometimes catch this
behavior and ask the jurors questions about being fair and impartial
o We are concerned though once deliberations start about having contact
with jurors
o Threshold of 606(b) — once deliberations have started; juror’s vote
(deliberations), concerning indictment (deliberations); protecting space
after everything else in the trial is done
 8.6 – Because the prosecutor’s office is on the same hallway as the jury room,
the defense attorney suspects that the prosecutor may have heard the laughter
and singing. She wishes to call him on the stand and examine him under oath.
The prosecutor objects, citing the advocate witness rule.
o Answer: This is different than Ewing and the typical structure and
framework of the advocate-witness rule. The spirit behind the advocate
witness rule is that a client’s attorney should not play both the role of an
advocate and a witness, because it will (1) confuse the jury, and (2) will be
playing potentially conflicting roles of zealous advocate and witness
subject to perjury — they just don’t work together
o Advocate/Witness Rule: Here, however, it’s not advocate-witness, but
adversary-witness — accordingly, the same justifications do not apply
o Strong reasons as a policy matter to keep this prosecutor from testifying

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o Trial is also over—if we already have the deputy’s testimony it could be

cumulative
 8.7 – At the beginning of civil trial, the judge instructs the jurors not to talk to
anyone about the case while it is proceeding, including the lawyers. During the
trial one of the jurors passes the plaintiff’s attorney in the hallway and says,
“You’ve got’em running!” The attorney reports the remark to the judge and
opposing counsel. May the judge question the juror under the oath about the
incident? May the judge question the juror under oath about the juror’s
continued ability to be fair and open minded
o Answer: No problem under 606(b). The judge is permitted to question the
juror about this and remind the juror that he must stay fair and impartial

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OPINIONS, EXPERTS & SCIENTIFIC EVIDENCE

LAY OPINIONS

F.R.E. § 701 Opinion Testimony by a Lay Witness.

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’s perception;
(b)Helpful to clearly understanding the witness’s testimony or to determining
a fact in issue; and

Introduction
 Under Rules 701 and 702, opinions must be helpful to the trier of fact—and
Rule 403 provides for exclusion of evidence which wastes time
 Analysis:
o (1) Does the witness have firsthand knowledge? (i.e. eyewitness)
o (2) Would the testimony help the jury resolve a disputed fact?
o (3) Does the testimony satisfy 704?
 Layperson: results from a process of reasoning familiar in everyday life
o “It appeared to be blood”
o “You don’t need a weatherman to know which way the wind blows.”
o Involves process of reasoning familiar in everyday life (advisory
committee)
 Expert: results from a process of reasoning which can be mastered only by
specialists in field (advisory committee). “Bruising around eyes is indicative of
skull trauma”

Analysis
 (1) F.R.E. 602: Need for Personal Knowledge.
o Lay witnesses must have personal knowledge
o Expert witnesses do not need personal knowledge under 703
o To satisfy PK requirement  proponent of witness must introduce evidence
that provides basis for which jury or judge sitting as trier of fact could
reasonably conclude that the witness has PK
o Distinction between fact and opinion — hard to draw the line (see Beech
Aircraft report fact vs. opinion) but as long as it is rationally based on
witness’ perceptions and helpful to fact finder, the judge should permit the
lay testimony
 (2) F.R.E. 701. Opinion Testimony by Lay Witnesses.
o Testimony in form of an opinion must
 (a) Be rationally based on witness’s perception
 (b) helpful to clearly understanding the witness’s testimony or to
determining fact in issue
 (c) not based on scientific, technical, or other specialized knowledge
within scope of 702
 (3) BALANCE. Always balance under 403.

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Rule: The requirement that a lay opinion be rationally based on the witness’
perception requires that the witness have firsthand knowledge of the factual
predicates that form the basis for the opinion. An eyewitness has firsthand
knowledge of the facts from which an opinion can be formed. (F.R.E. 701) (Meling,
Knight)
U.S. v. Meling (9th Cir. 1995)
 Facts: Husband charged with poisoning wife. Lay witness testimony from 911
operator and paramedic who testify that is seemed as if defendant was faking
grief.
 Holding: District Court ruling affirmed. 911 and paramedic testimony
admissible.
 Reasoning: Paramedics, 911 caller were basing testimony on what they
perceived, first hand.
 What about a witness, who was not the operator that received the call?
This gets closer to expert testimony. Safer course might be to try and qualify
them as an expert, if they are just listening to the convo after the fact.

Rule: In order to find an error harmless, a court must be able to say that it is highly
probable that the error did not contribute to the jury’s judgement.
Gov of Virgin Islands v. Knight (3rd Cir. 1993)
 Facts 1: Eyewitness testimony seemed like gun going off was accident.
 Knight argues that it was reversible error to exclude an eyewitness’ and an
investigating officer’s testimony that the firing of the gun was an accident
 Holding 1: Error to exclude, but harmless (not reversible)
 Facts 2: Investigating Police officer testimony—might have been an accident. PO
was not present
 Holding 2: Inadmissible, because there was no PK! If PO wants to offer
testimony about examination of the gun, this is expert testimony.

Rule: There can be a leap in opinion, so long as it is rationally based on witness’

perception.
State v. Lewis
 P. 226. Declarant, dead victim, had told police that woman who had come in with
vases earlier in the day was involved in the shooting. He said, “I know she was.”
Would that be permissible opinion testimony?
 Victim’s ID was rationally based on victim’s perception

F.R.E. § 704 Opinion on an Ultimate Issue.

(a) In general — not automatically objectionable. An opinion is not
objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion
about whether the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense.

Rule: A lay witness’s testimony is not objectionable simply because it embraces an

ultimate issue to be decided by the trier of fact. (F.R.E. 704 & Bump)
Robinson v. Bump (5th Cir. 1990)

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 Facts: MTD Products employed Bump to operate truck. Car, driven by Harris’,
collides with truck, Bump loses control and hits the Robinson’s car, killing
Robinson and Robinson’s family.
 Testimony from Battle, a driver following Bump: “truck driver appeared to be
in total control.”
 Plaintiff’s argue that Battle’s testimony was either 1) legal conclusion or 2)
opinion of ultimate issue
 Holding: Permissible. No abuse of discretion.
 Reasoning: Battle’s testimony is clearly admissible as lay testimony. Battle
observed the truck and its movement, which is rationally connected to the
control of its driver, and the testimony was helpful in allowing the jury to assess
Bump’s negligence.

Rule: A case agent testifying as a lay witness may not explain to a jury what
inferences to draw from recorded conversations involving ordinary language. At that
point, his testimony is no longer evidence but becomes argument. If you are being
parachuted in, and don’t have personal knowledge, you likely won’t be found
to be a lay person—and this crosses over into expert testimony.
U.S. v. Freeman (6th Cir. 2013)
 Facts: Freeman convicted of conspiracy to use interstate commerce facilities in
the commission of murder for hire. He received sentence of life without parole.
Government’s primary evidence against Freeman consisted of 23,000 phone
conversations between he and other defendants.
 Defendant Argues: District court erred by permitting FBI agent in charge of
investigation to give lay testimony under F.R.E. 701
 Government argued: Agent’s testimony was not expert testimony, but was lay
person testimony based on personal knowledge of the investigation
 Holding: Court finds that the prosecution did not establish a proper foundation
for Agent’s testimony under 701
 Reasoning: During Agent’s testimony and inferences he never specified personal
experiences that led him to obtain his information, but instead repeatedly relied
on the general knowledge of the FBI and the investigation as a whole. Agent’s
testimony consisted of many opinions the jury was capable of drawing on its own.
Moreover, jury may have been unduly persuaded by Agent’s position as FBI
agent

Rule: Pushing line between lay and expert testimony. If testimony is based on
personal experiences, even though that personal experience happens to be
specialized (Ayala-Pizarro, Bump), it constitutes lay witness testimony
U.S. v. Ayala-Pizarro (1st Cir. 2005)
 Facts: Ayala convicted of possession with intent to distribute and possessing a
firearm in furtherance of drug trafficking crime.
 Defendant argues district court erred when it permitted the arresting officer to
cross the line from being a fact witness to being an expert witness when the PO
testified about drug distribution points and how they operate as well as how
heroin is normally packaged for distribution
 Holding: Court holds that neither type of the testimony—packaging and drug
points—was expert testimony and both testimony was admissible as lay testimony
under F.R.E. 701

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 Reasoning: PO’s testimony was well founded on personal knowledge of being

stationed at the drug point and required no special expertise of the officer.
Someone part of drug ring could probably provide similar testimony re: drug
points and bags.

EXPERT TESTIMONY
Permissible Subjects and Scope
 Expert witnesses, unlike lay witnesses, are allowed to offer opinions based in
whole or in part on information they have received secondhand, as long as the
information is of a kind typically relied upon by experts in the field, and as long
as the witness is truly drawing on some special skill or knowledge, as opposed to
making judgements the jury could just as easily make itself

F.R.E. § 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 expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b)The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of
the case.

F.R.E. § 705. Disclosing the Facts or Data Underlying an Expert.

Unless the court orders otherwise, an expert may state an opinion—and give the
reasons for it—without first testifying to the underlying facts or data. But the
expert may be required to disclose those facts or data on cross examination

F.R.E. § 703 Bases of an Expert’s Opinion of testimony.

An expert may base an opinion on facts or date in the case that the expert has
been made aware of personally observed.

If experts in the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be admissible for the
opinion to be admitted.

But if the facts or data would otherwise be inadmissible [i.e. hearsay not falling
into exception] the proponent of the opinion may disclose them to the jury, only if
the probative value in helping the jury evaluate the opinion substantially

Questions to Ask
 (1) What topics are appropriate for this type of testimony?

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 (2) Who should be permitted to qualify as an expert?

 (3) Probable reliability of the testimony?
 (4) What types of data an expert may rely on to form an opinion; and
 (5) Whether the style or form of the testimony should be restricted?

Rule: If no specialized knowledge is needed, it’s likely of no assistance to jury

Hatch v. State Farm (Wyo. 1997)
 Facts: State Farm refused to pay for damage caused by a fire in Hatch’s house,
because the company concluded that Frank Hatch had started the fire. Hatch
was charged with arson but the jury found him not guilty. The Hatches sued
State Farm for breach of duty of good faith and fair dealing. Expert’s testimony
in deposition was from Cloyd, an expert on insurance industry standards, who
testified as to whether State Farm complied with its “like a good neighbor”
standard.
 Holding: Testimony was properly excluded
 Reasoning: testimony and opinion on how to act like a “good neighbor” was
beyond realm of expertise

Rule: Out-of-court statements that are related by expert solely for the purpose of
explaining the assumptions on which that opinion rests are not offered for their
truth and fall outside scope of Confrontation Clause.
Williams v. Illinois (2012) (Alito)
 Facts: Williams on trial for rape. Victim picked out in a lineup. We have two DNA
specimens:
o Blood taken from Williams when he was analyzed years ago
o Semen sample is taken from rape kit
 Expert testifies that there is a match between these two profiles in these
samples. The person who testified and said there was a match had no custody
over the semen or the blood sample. The witness reviewed the documents,
compared it to another DNA profile. Witness created the blood sample, not the
semen sample. Match Report is admitted into evidence after this foundational
testimony
 Issue: Does Crawford bar an expert from expressing an opinion based on facts
about a case that have been made known to the expert but about which the
expert is not competent to testify?
 Defendant Argues: I should have been able to confront the person who created
the sample.
 Holding: Admissible. This expert testimony does not violate Confrontation
Clause.
 Reasoning: (1) Not testimonial. Unidentified rapist was at large, so this
constituted ongoing emergency.
o (2) Not offered for the truth. A jury can rely on documents such as
textbooks, reports, and documents to help understand how the experts
are coming to their opinion. This is not the same is being offered for the
truth, and proper limiting instruction (105) helps with this.
o Alito (majority): Does not authorize it to come in for the truth
 Concurrence (Thomas): Thomas reaches same conclusion as plurality but
because Cellmark’s statements were not testimonial.

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 Dissent (Kagan): Argues there was no other reason for creating the profile!
Expert is offering a match, if it weren’t offered for the truth, and the state were
not contending that this were the profile, the expert’s testimony would be
irrelevant! State did not give the defendant a chance to question the analyst even
though she was prosecuted for rape based in part on a DNA profile created in
Cellmark’s lab.
o To determine the validity of the expert’s conclusion, the finder of fact
must assess the truth of the out of court statement on which it relies
o The report is testimonial—it is meant to serve as evidence in a criminal
trial and the majority fails by not providing reasoning for why it is
nontestimonial
 Takeaway: Most agree with Alito—703 does not authorize as coming in for the
truth, but rather as providing context. But there is a lot of commentary in this
area!
 Limiting Instruction: It’s only when the expert is opining based on other things
that include hearsay where the jury might be told: “you’ve heard information
as providing basis for expert’s opinion, you’re not to consider it for the
truth
o Should query whether as a strategic matter you want to ask for that
and call the jury’s attention to that

EXPERT TESTIMONY: RELIABILITY & THE DAUBERT REVOLUTION

Court-Appointed Experts
 Attorneys generally don’t like resorting to F.R.E. 706 because it’s a dramatic loss
of control over litigation—not knowing the expert and not knowing how or what
they will say

Rule: Party must demonstrate necessity of having court-appointed expert (F.R.E.

706)
Leblanc v. PNS Stores (Ed La 1996)
 Facts: Defendant wanted a court-appointed physician
 Holding: Court held that Rule 706 should be reserved for extraordinary
circumstances and defendant had not demonstrated necessity of court-appointed
expert

Daubert Overview
 Trial judge must scrutinize the expert testimony offered by the parties to make
sure it is reliable. This requirement was imposed by the Supreme Court in a
1993 decision, Daubert. The decision displaced the general acceptance test,
the thing from which the expert’s testimony was deduced must have general
acceptance in the respective field.
 Frye: Before Daubert, there was Frye, which said that scientific evidence is
admissible if based on methods generally accepted in the scientific community.

Judge As Gatekeeper
 Under Daubert, trial judge serve as gatekeepers (Joiner), responsible for
independent screening of the reliability of the science and of the expert
witnesses. F.R.E. now requires a trial judge to exclude expert testimony unless

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the judge concludes it is reliable (Daubert v. Merrell Dow, GE v. Joiner, and

Kumbo Tire)
 Trial Judges Should Examine (under Daubert):
o (1) Whether the theory or technique underlying the expert testimony can
be and has been tested?
o (2) Were controls and standards were maintained?
o (3) Has theory been subject to peer review and publication?
o (4) Is there a known error rate? And
o (5) Is the theory accepted in the scientific community? (this is the Frye
test, which has been one, rather than the sole factor)
o *Factors are a totality—don’t need to satisfy each one
 Rationale behind screening: Jurors give great deference to experts and there
is a modern-day sense that you can find an expert who will say anything.
 Criticism of Daubert: This puts a great deal of faith in trial court and generalist
federal judge to apply these factors.
 Standard on appeal for trial court judge’s decision is abuse of discretion
(Joiner)

Rule: Watershed case—created new methodology for judges in screening

expert testimony. The inquiry envisioned by F.R.E. 702 is a flexible one. Trial
judge must scrutinize the expert testimony offered by the parties to make sure that
any and all scientific testimony is not only relevant, but reliable.
Daubert v. Merrell Dow (U.S. 1993)
 Facts: Mass tort case. Exoert called to testify about the effects of the drug at
issue, stating that is caused deformities. Expert relied on a theory that was still
under debate in scientific community and had not been generally accepted.
District Court found for defendant. Plaintiff’s expert’s testimony did not meet
general acceptance standard of Frye. Court said that given vast body of
epidemiological data concerning Bendectin, expert opinion not based on
epidemiological evidence is not admissible to establish causation.
 Defendant Argues: Plaintiff’s expert used technology that was not generally
accepted
 Plaintiff argues: Frye test was superseded by the adoption of the F.R.E.
 Holding: Expert testimony in this case admissible. Court does away with
“general acceptance” test
 Reasoning: Nothing in the text of Rule 702 establishes “general acceptance” as
an absolute prerequisite to admissibility. Expert testimony still has limits—the
trial judge must determine if it is reliable
o Widespread acceptance can be an important factor in determining
admissibility
o Appropriate safeguards: Vigorous cross examination, presentation of
contrary evidence, and careful instruction o the burden of proof are the
traditional and appropriate means of attacking shaky but admissible
evidence rather than wholesale exclusion under an uncompromising
“general acceptance” test

Rule: A court may conclude that there is simply too great an analytical gap between
the data and the expert opinion proffered. This judgement, by the district court, is
reviewed by an abuse of discretion standard.

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General Electric Co. v. Joiner (U.S. 1997)

 Facts: Joiner contracted lung disease and sued his employer GE, claiming that he
was exposed to PCBs. District Court found that the testimony of Joiner’s experts
failed to show that there was a link between exposure to PCBs and small-cell
lung cancer. Court of Appeals reversed
 Plaintiff’s theory: His exposure to PCBs and their derivatives promoted his
development of lung cancer
 Holding: District Court did not abuse its discretion. Case remanded for
proceedings.
 Reasoning: District Court judge plays the “gatekeeper” role in screening such
evidence. The issue in this case was whether these experts’ opinions were
sufficiently supported by the animal studies on which they purported to rely. The
district court determined that there was simply too great an analytical gap
between the data and the expert opinion offered—and court is permitted/must
look at this leap.

Rule: Daubert applies to more than just scientific expertise. Experts who base their
testimony on specialized experience, rather than formal scientific training, must also
use a demonstrably valid methodology. Judge must still assess reliability. Standard
on appeal is abuse of discretion.
Kumho Tire Company v. Carmichael (U.S. 1999)
 Facts: Rear tire of a minivan driven by Carmichael blew out. Carmichaels
claimed tire was defective and sued Kumho. Plaintiffs relied on expert testimony
of Carlson. Carlson testified that despite the tire’s age and history, the defect in
manufacturer caused the blowout. Carlson’s conclusion that a defect caused the
separation rested upon certain propositions which defendants dispute:
 Defendant Argues: testimony fails F.R.E. 702’s reliability requirement
 District Ct granted motion to exclude testimony based on theory’s testability and
whether it has (1) been peer reviewed, (2) known or potential rate of error, (3)
degree of acceptance within scientific community
 Holding: district court did not abuse its discretion in holding expert testimony
inadmissible
 Reasoning: The district court found: (1) none of the Daubert factors including
general acceptance in the relevant expert community, indicated that Carlson’s
testimony was admissible, (2) his own analysis revealed no countervailing factors
operating in favor of admissibility, and (3) parties identified no such factors in
their briefs.
o Trial court must have same latitude in deciding how to test an
expert’s reliability an to decide whether or when special briefing or
other proceedings are needed to investigate reliability as it enjoys in
deciding whether or not that expert’s relevant testimony is reliable

Current Expert Opinion Controversies

 National Academy of Sciences charged with advising congress on science came
out with report challenging reliability of forensic sciences including ballistics,
bite marks, hair comparison—the type of expert testimony that was routinely
admitted, even without Daubert hearing, courts just accepted the methodology
 Defense lawyers weren’t even bringing challenges to much of this testimony
 Courts started realizing it wasn’t reliable

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 702 Daubert regime allows court to make that determination!

o Daubert regime is more hospitable to new methodologies, as compared
to a Frye regime, and more willing to challenge established methods. In
a Fyre jurisdiction, it might be more difficult to challenge a well-
established methodology such as hair comparison or bite marks.

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PRIVILEGES
General
 Privilege Rules differ from other rules of evidence in four important ways
o (1) Privilege rules are not just rules of admissibility. They govern not just
whether certain evidence can be introduced at trial, but whether the
disclosure of certain evidence can be compelled
o (2) Some evidentiary privileges parallel rules of professional responsibility
that impose duties of confidentiality
o (3) Purpose. Privilege is unlike other doctrines we have studied. Privilege
goes against the truth seeking function.
 Most other rules of evidence aim to improve fact finding, while
privilege undermine the fact-finding process
 “Rather than facilitating the illumination of truth, they shut out the
light” (McCorkmick on Evidence)
o (4) FRE. Privileges are not codified in the F.R.E. F.R.E. 501 essentially
punts development of privilege law to the courts
o (5) Timing. Privilege determinations also occur earlier—when judge is
making a preliminary ruling, privilege kicks in. You can assert it long
before it gets into the court room.
 Privileges Include: attorney-client, spousal

Questions to Ask
 (1) What purposes are furthered by recognizing the privilege?
 (2) How is the privilege stablished? Just because we have attorney & client, does
not mean we have ACP
 (3) What is the scope of the privilege?
(4) Who holds the privilege? Who can assert it?
 (5) Under what circumstances will privilege be deemed waived or will an
exception be recognized?

F.R.E. § 501. Privilege in General.

The common law — as interpreted by United States courts in the light of reason
and experience — governs a claim of privilege unless any of the following
provides otherwise:
(a) the United States Constitution;
(b)a federal statute; or
(c) rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for
which state law supplies the rule of decision.

ATTORNEY-CLIENT PRIVILEGE
Introduction
 Probably the most heavily litigated privilege
 Client holds the privilege!

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 Criticism of privilege: Offers tremendous assistance to wrongdoers—and that it

coincides suspiciously well with the professional interests of the bar
 Purposes furthered by the attorney-client privilege include full disclosure of
relevant facts, lawyers can give better advice if they have all relevant facts, client
feels more comfortable disclosing

Elements of Attorney-Client Privilege

 (1) Communication,
o Substance of communication protected (Kendrick)
 (2) In confidence,
 (3) Between a lawyer and client,
 (4) in the course of provision of professional legal services

Rule: Common law rule protects attorney-client privilege even after client has died
Swidler & Berlin v. U.S. (U.S. 1998)
 Facts: Foster met with Hamilton, attorney at Swidler, to seek legal
representation concerning possible congressional or other investigations.
Attorney made notes of an initial interview and labeled them privileged. Foster
committed suicide. Government seeks his notes for use in a criminal
investigation.
 Government argues: A-C privilege should not prevent disclosure of confidential
communications where the client has died and the information is relevant to a
criminal proceedings
 Issue: What is the scope of the attorney-client privilege and does it survive the
death of the client?
 Holding: Court holds that the notes are protected by A-C privilege.
 Reasoning: Knowing that communications will remain confidential even after
death encourages the client to communicate fully and frankly with counsel.

(1) Communication
Rule: Substance of the communication is protected, not the fact that there have
been communications. Physical appearance is not a communication.
United States v. Kendrick (4th Cir. 1964)
 Facts: defendant was insane and suffering form amnesia when he stood trial,
thus, as a result he was not competent to stand trial. Attorney testified that
petitioner was responsive, readily supplied attorney with his version of the facts
and names of people involved
 Petitioner argues: Testimony of his trial counsel should have been excluded at
the post-conviction hearing on the basis of Attorney-Client privilege
 Holding: Attorney’s testimony about petitioner not protected by A-C privilege
 Reasoning: All of the matters to which the attorney testified are objectively
observable particularizations of the client’s demeanor and attitude. Lawyer only
testified as to publically observable facts.

Rule: Attorney-Client privilege only applies to seeking legal advice.

Tornay v. U.S. (9th Cir. 1988)
 Facts: Tornays were subjects of IRS tax investigation. IRS sought to establish tax
liability on a net worth, net expenditure basis. IRS sent summons to their
attorneys to find out what fees Tornays were paying

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 Defendant Argues: (1) Client is less forthcoming if he knows that his attorney
might be called as a witness against him, and (2) a subpoena to lawyer hinders
development of a defense because it distracts the lawyer
 Holding: Attorney client privilege inapplicable here
 Reasoning: Fee information is generally not privileged. The Tornays identity
was known to the IRS. Some prospective clients may decided not to retain
counsel for legal services if they could be implicated by expenditures for those
services, but, this is not a sufficient justification to invoke the privilege

(2) In Confidence
Rule: Party asserting privilege must prove that conversation with attorney was
made in confidence
United States v. Gann (9th Cr. 1984)
 Facts: Gann convicted of possessing sawed-off shotgun. Bank in Portland robbed.
Dussault was observed fleeing bank, into car driven by Gann. Warrants were
issued to search Gann’s home and car registered in his name. Gann was in the
house talking on the telephone with lawyer in the presence of law enforcement
officers. He said: “looks like I’m going to have to go down, ex con in possession.”
 Holding: Conversation on phone was not privileged
 Reasoning: Because Gann knew, or should have known, that third parties were
present, his attorney-client privilege claim must fail. Gann cannot show that his
conversation with his attorney was made in confidence.

Rule: Attorney Client Privilege shields only those communications by a client to an

attorney that were intended to be confidential. Thus, as a general matter, the
attorney client privilege will not shield statements made by a client to his or her
attorney in the presence of a third party who is not an agent of either the client or
attorney.
 An exception to that rule is when the third party “is necessary to the provision
of legal services and representation”
o A friend and potential character witness is not “necessary to the
provision of legal services”
United States v. Evans (7th Cir. 1997)
 Facts: Evans indicted on charges of racketeering, filing false tax returns,
obstruction of justice. Government wanted to admit certain testimony by attorney
Koch which Evans asserts is privileged. Holden, friend of Evans, arranged for
and scheduled meeting with Kock so that Evans could explain his situation.
 Defendant Argues: Statements made during meeting covered by A-C
 Holding: Koch statements admissible
 Reasoning: Evans has failed to carry his burden of proving that Holdren’s
presence was necessary to accomplish the objective of his consultation

Rule: When information is transmitted to an attorney with the intent that the
information will be transmitted to a third party (in this case, a tax return) such
information is not confidential
U.S. v. Lawless (7th Cir. 1983)
 Facts: Lawless is attorney in Illinois and was retained by co-executors of estate
to prepare tax return of Dieken, deceased. IRS sought by summons all documents

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relating to or used in the preparation of the return. Lawless asserted A-C

privilege.
 Holding: Information transmitted for the purpose of preparation of a tax return,
though transmitted to an attorney, is not privileged information

Rule: Question is: does the document in question reveal, directly or indirectly, the
substance of a confidential attorney-client communication
Smithkline Beechan Corp. v. Apotex Corp. (N.D. Ill. 2000)
 Facts: patient dispute.
 Holding: Documents described as prepared in order to allow attorneys to assess
patentability and sift information to prepare applications, to be immune from
discovery under the attorney-client privilege
 Reasoning: It is enough that the overall tenor of the document indicates that it
is a request for legal advice or services

(3) Between Attorney and Client

Rule: In determining whether third person is “necessary for provision of legal
services,” the court will look to
 The identity of the third party
 The context of the litigation and purpose served by the third party’s presence
 There must be a lawyer present for Privilege to apply
United States v. Kovel (2d Cir. 1961)
 Facts: Kovel is a former IRS agent having accounting skills and employed by
Kamerman & Kamerman, a law firm specializing in tax law. Law firm advised
AUSA that since Kovel was an employee under the direct supervision of the
partners, Kovel could not disclose any information.
 Issue: Under what circumstances, if any, the attorney-client privilege may
include a communication to a non-lawyer by the lawyer’s client
 Holding: Privilege extends to accountant here
 Reasoning: Privilege will not apply if what is sought is not legal advice, or if the
advice sought is that accountant’s and not the lawyer’s
o Does not apply to non-lawyer employees with a “menial or ministerial
responsibility”
o Here, where the Defendant is facing Tax Evasion charges, the presence
of a third party tax accountant is necessary for further provision of legal
services; however

Rule: Privilege protects pooling of information for any defense purposes common to
the co-defendants
U.S. v. McPartlin (7th Cir. 1979)
 Facts: Investigator acting for Frederick Ingram’s counsel interviewed McPartlin,
co defendant, with the consent of the latter’s counsel
 Holding: Attorney who thus undertakes to serve his client’s co-defendant for a
limited purposes becomes the co-defendant’s attorney for that purpose.
 Reasoning: Nor was it fatal to privilege that McPartlin made the statement in
effect to Ingram’s attorney rather than his own. Investigator was an agent for
Ingram’s attorney, so it’s as if the communication was to the attorney himself

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Rule: Privilege applies only if the person to whom the communication was made is a
member of the bar of a court
Pasteris v. Robillard (D. Mass. 1988)
 Facts: Pasteris sued Robillard for injuries sustained when Pasteris fell down
stairs at R’s home. Plaintiffs sought statements of Robillard’s transcribed
statement to his insurance company. Defendant objected on grounds of attorney-
client privilege.
 Holding: Defendants cannot invoke the privilege.
 Reasoning: Notwithstanding the insurance company’s obligation to defend R,
defendants do not advance facts showing that to whom the communication was
made was actually a subordinate of an attorney or that the individual taking the
statement on behalf of the insurance company was an attorney him/herself

Upjohn
 Control Group Test: Privilege is restricted to those employees who play a
“substantial role” in directing a corporation — only people who control the entity
are the people whose information should be kept away from the trier of fact
o Covered: Only the president, vice president, and arguably heads of
departments
o Uncovered: Everyone else — lower level employees
o Policy: This is a test dependent on the title and role of the employee
 The Control Group Test is applied for fairness in litigation — for the
sake of having only “necessary” information covered by privilege
 Upjohn Test: Scope of Employment: Privilege covers all communications
between counsel and employees relating to the employees “scope of
employment” or the “scope of . . . corporate duties” that requires a case-by-case,
factual inquiry
o Covered: Communications within the “scope of . . . corporate duties”
o Uncovered: Communications outside the “scope of corporate duties”
o Policy: This test is a subject matter test.
 The entity needs as much information as possible to protect both its
employees and the actual employees
o If the employees cannot feel secure in disclosing their information, then
the counsel cannot properly defend the entity — the spirit behind
confidentiality — allowing the lawyer to appropriately defend his client
— is served better by Upjohn

Upjohn Co. v. U.S. (U.S. 1981)

 Facts: Upjohn manufactures and sells pharmaceuticals. Thomas is GC of Upjohn.
Upjohn conducts internal investigation about questionable payments, about
possible illegal payments to foreign companies. GC sends survey to managers
and GC and outside counsel interview 33 Upjohn officers and employees.
Company voluntarily submitted a preliminary report to SEC and IRS. Special
agents conducting the investigation were given lists by Upjohn of all those
interviewed and all who had responded to the questionnaire. IRS compels the
disclosure of the documents
 Defendant/Upjohn Argues: Object to the production of documents on grounds
that they were protected from the disclosure by attorney-client privilege and
constituted the work product of attorneys

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 Government argues control group test

 Holding: Communications of employees to GC protected by privilege
 Reasoning: (1) Communications were in scope of employees duties/corporate
duties
o (2) Employees were sufficiently aware that corporation was seeking
legal advice—this is important because the employees understood why
they were being asked information.
o (3) Questionnaire identified the GC
o (4) Communications were labeled as highly confidential
 Court criticizes Control Group Test because the purpose of the privilege is so
lawyers get the information they need. It would be worthless in the corporate
context if the privilege did not apply to employees with the information.
o Makes it difficult for corporate attorneys to formulate sound advice
o Test is difficult to apply in practice
o Privilege only protects disclosure of communications, it does not protect
disclosure of the underlying facts by those who communicated with the
attorney. The government here was free to question the employees who
communicated with GC Thomas
 Waiver: Entity holds the privilege. Employees cannot waive on behalf of the
company.

(4) To Facilitate Legal Services

Rule: Generally, identity of a client is not privileged. Except, identify is privileged
when acts performed were closely interrelated with the rendering of professional
service. And no privilege exists when the attorney is acting outside of her
professional capacity, as a mere agent
Hughes v. Meade
 Facts: Hughes participated in return of an IBM typewriter to the police
department but refused to disclose to him who had hired him to return it.
 Defendant Argues: Objection – information is privileged because
 Holding: The delivery of stolen property to the police department was not an act
in the professional capacity of petitioner nor was it the rendition of legal service

Rule: If the primary service rendered was non-legal, then it falls outside scope of
privilege
U.S. v. Davis (5th Cir. 1981)
 Facts: Attorney Craig Davis appealed from a judgement enforcing an IRS
summons requiring him to produce documents relating to the tax liability of his
client. Summons requests the work papers he produced in the course of
preparing Howard’s tax returns and the tax records upon which they were based.
 Holding: Neither category of documents is privileged
 Reasoning: The primary service is an accounting service. Communications
relating to that service should therefore not be privileged, even though they are
performed by a lawyer

Rule: Lawyers hired within firm still privileged.

U.S. v. Rowe (9th Cir. 1996)
 Facts: After learning of possible irregularities in the handling of client funds,
partner of law firm Rowe asked associates to investigate McElravy’s conduct.

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 Government Argues: Wanted to question associates about their conversations

with the firm
 Holding: Activities here meet “attorney-client” and “professional legal services”
of the privilege requirement
 Reasoning: (1) Attorney-client relationship. Litigation was anticipated and
professional legal services were sought from day one. The associates, assigned
on behalf Rowe, were effectively in-house counsel.
o (2) Professional Legal Services. Fact-finding which pertains to legal
advice counts as “professional legal services.” Rowe asked lawyers not
secretaries, paralegals, librarians or any of the other firm employees to
conduct the investigation, and, having chosen to hand the job over to
lawyers, was justified in expecting that communications with the
lawyers would be privileged.

Problems
 10.1 – Shortly after meetings with his lawyer on a separate matter, Dan is
arrested for driving while intoxicated. At his trial, the prosecutor calls Dan’s
lawyer to the stand and asks whether Dan appeared inebriated during their
meeting. Dan objects on grounds of privilege, how should the judge rule?
o Answer: Pursuant to Kendrick, the Judge should overrule Dan’s objection
on the grounds that information sought is not a “communication” because
a client’s demeanor and behavior is not a “communication” in the same
way as a verbal assertion or written statement of fact or question is — it’s
observable by anyone
o Other objections? Advocate-witness rule.
o Lawyer who has information on him being intoxicated is not this lawyer?
 10.2 - Carolyne hires an accountant and tells him at their first meeting that she
has not filed tax returns for the past five years because she could never find the
time. She asks whether he thinks she needs a lawyer, and he says yes. Are
Carolyn’s remarks to her accountant privileged?
o Answer: Unlike the scenario in Kovel, there is no Counsel present in this
conversation. Attorney Client Privilege does not exist between a Client and
non-Counsel. Must be lawyer for legal services
o While the accountant may be “necessary for the provision of legal
services”, and thus his presence as a third party in a meeting between
Carolyne and her attorney would not destroy privilege, there is a requisite
showing that needs to be made first that the communication was with
Counsel — here there is no such showing
o Distinction in Kovel – third party is there to translate complicated
information from the attorney to the client, as a conduit for the attorney, it
is covered by privilege
o Client went to the accountant first here. Accountant says I think you should
go see a lawyer. Even if the client might have thought in their mind, I need
to go see a lawyer. Whereas if the person goes see a lawyer, then lawyer
says go see accountant, this might be covered because it’s not part of legal
services. They are using the accountant to get the fact based.
o There may be inequities for clients who don’t realize they need to go to
lawyer first. If you go to lawyer first, then lawyer sends you to agent, that

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is now part of the provision of legal services—and anything that happens in

course of that work will be covered.
 10.3 - The president of a chemical manufacturing company suspects that some of
his employees are illegally disposing hazardous wastes. He hires a private
detective firm to investigate. Are his conversations with the firm privileged?
What about the conversations of his employees? Would the answer be different if
he hired a law firm instead of a private detective firm? What if he hired a private
detective firm, but the person he dealt with at the firm was a lawyer
o Answer: Need an Attorney — see Kovel
o Would answer be different if he hired a law firm? If he goes to the law
firm to have the firm do what the private detector firm were going to do,
this would be covered
o What about PI firm but he’s dealing with attorney? What are the
questions that you want to know? Even if person has a law degree, if he’s
not going to person for legal services then it’s not protected
o What about if GC/in-house counsel had investigator look into this?
This seems like Upjohn and privileged. Or also like the Rowe case where
the client is the law firm itself that uses in-house lawyers to investigate
what happen at the firm and provide legal advice to the firm.
 10.4 – Craig wishes to become a U.S. citizen. Fred advertises his services as an
expert in immigration law. Craig hires Fred to help him complete the
naturalization applications. Contrary to Craig’s belief, Fred is not a lawyer. Are
Craig’s confidential conversations with Fred privileged.
o Answer: Fred is not a lawyer and just because you label yourself an expert
in law doesn’t make you a lawyer for purposes of Attorney Client Privilege
either, so that’s our starting point.
o However, there is an element of unfairness here. We might say that Craig
should have done his due diligence, but then again, maybe he did.
o Gann tells us that the privilege belongs to the client, and therefore the
client’s expectations govern the creation of the privilege. Accordingly, the
test for whether Craig’s communications with Fred are privileged is
whether Craig could have reasonably expected his communications
with Fred, an alleged attorney, would be privileged. Here, it seems
that he could have, because he could have reasonably expected Fred was
an attorney
o Reasonable belief standard? Comes from case law. A reasonableness as to
each element—we’re tracking the client’s expectation.
 10.5 – Colleen meets in her office with her lawyer. No one else is present and
they close the door. But their conversation is overheard by a window washer
working outside the office immediately below Colleen’s. Can Colleen prevent the
window washer from testifying about what he heard
o Answer: As a general rule, the presence of a third person that is not
necessary for the provision of legal services, destroys attorney client
privilege.
o However, this is distinct from Evans where the client invited his friend and
character witness in to talk to his attorney with him. This was an
eavesdropper, more akin to the Gann case: same inquiry holds true as with
the above answer.

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o Should note however, that the lawyer’s knowledge or expectation of the

fact window washers were present — client’s expectation governs.
Therefore, inquiry is whether the client reasonably expected, and
took reasonable steps in ensuring, that communications were
privileged. Colleen can object and say he should not be permitted to
testify.
 10.6 – From his desk at work, Collin sends his lawyer an e-mail message seeking
legal advice. Collin’s employer randomly monitors e-mail messages sent to and
from Collin’s workplace, n order to ensure the computer is not misused. Colin
was informed of the monitoring when he joined the company, but has forgotten
about it. As it happens, Colin’s employer does not read his message to his lawyer.
Is the message privileged? Would the answer be different if the employer did
read the message
o Answer: Gann and No
o If party knows or should have know that third-party was present, so here
the employee should have known that third-party could be “present” in
monitoring emails, he was on notice in monitoring emails, then privilege
does not exist (Gann). And even if there had been no advance notice, if
you’re at work you have an understanding that employer will have access
to your computer, so no reasonable expectation of confidentiality in your
work computer
o Alternatively, you could concede the point that what is done at work is
private, but, on the other hand, if you’re in a work environment where the
checking does not go on—you could argue on his behalf that it was
reasonable for him to think it is privilege.

WAIVER
Introduction
 (1) Establish that privilege exists
o Go through elements
 (2) Was privilege waived?
o (a) Reveal the communication to a third party, or authorize lawyer to do so
(Bernard)
o (b) Attack the lawyer’s competency in an ineffective assistance of counsel
claim (Tasby)
o (c) Assert an advice of counsel defense (Hollins v. Powell)
 (3) Or is there an exception?

Rule: A client who tells a third party about the contents of a communication an
attorney waives privilege
U.S. v. Bernard
 If he had said “don’t worry it’s fine” as opposed to “my lawyer told me it’s fine”
he would not have broken the seal, but in repeating the advice to Mr. Treat he
waives privilege

Rule: An attack, by the client, upon his attorney’s conduct, which calls into question
the substance of their communications, constitutes a waiver of attorney-privilege.
Privilege is waived when a client attacks his attorney’s competence.

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Tasby v. U.S.
 Facts: In a previous court proceeding, Tasby testimony’s indicated that his
attorney, Mr. Peek had advised him not to take the stand. Later, Tasby claimed
ineffective assistance of counsel and in support of his claim, testified that he did
not wish to take the stand in the original trial. Furhter, he stated that Mr. Peek
never advised him not to take the stand.
 Holding: Mr. Tasby waived privilege
 Reasoning: Tasby put in issue the substance of his communications with Tasby

Rule: Waiver will be implied when a client has testified concerning portions of the
attorney-client communication.
Hollins v. Powell
 Facts: The defendants, the City of Wellston and Powell, appeal from a judgment
entered by the district judge upon a jury verdict finding them liable for violating
constitutional rights of Hollins, Wallace, and others. Plaintiffs sought to depose
City Attorney.
 Holding: Defendants waived attorney-client privilege by the time the attorney
was called as a witness; defendants waived privilege during trial.
 Reasoning: On plaintiff’s direct examination of Powell, defendant, he testified as
to the substance of his conversations with the city attorney. This testimony
occurred before the City’s attorney was called as a witness. Because the City
attorney failed to object to the plaintiffs’ relevant questions of Powell, it waived
the attorney-client privilege.

Rule: A client can implicitly waive privilege by allowing his attorney to publish a
book containing conversations between attorney and client
In Re Von Bulow (2d Cir. 1987)
 Facts: von Bulow accused of killing wife with too much insulin. Von Bulow
convicted, but on appeal, he hires Alan Dershowitz. Von Bulow acquitted (1985),
and shortly after the acquittal, von Bulow’s children from a prior marriage and
friends of the wife commenced civil action against von Bulow. Claims arose out of
the same facts as the criminal prosecution. 1986, Dershowitz comes out with
books, Reversal of Fortune.
 Conversation excerpts discussed in book:
o Initial meeting between A-C
o Discussion about bail
o Discussion about appellate strategy
o Discussion about D’s decision to testify at trial
 Plaintiff: Plaintiff’s counsel notifies Dershowitz that they would view publication
as waiver of attorney-client privilege.
 Defendant Argues: No waiver had occurred and he would not act to stop the
book’s publication.
 Issues: (1) Was there a waiver, (2) Breadth of the waiver
 Holding: (1) Von Bulow waived his privilege, (2) privilege still extends to
portions of conversations that were not revealed in the book.
 Reasoning: Waiver: By allowing publication of confidential communications in
his attorney’s book, petitioner was held to have waived his attorney client
privileged—petitioner was warned, before publication, that such an act might
trigger waiver and yet took no active measures to preserve his confidences; von

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Bulow promoted the book along with Dershowtiz; Von Bulow encouraged the
publication of the book.
 Scope/breadth of waiver: as to the particular matters actually disclosed in the
book, it was an abuse of discretion on district court’s part to broaden waiver to
include portions of the conversations which because they were not published
remain secret.
o The kids wanted entirety of conversations
o They argue that fairness doctrine ought to allow them to pierce
privilege for all convos
o In general, just because you make selective use of some parts of a
conversation with lawyer, does not mean you have opened the door to
everything
o Court drew the line at whether Dersh was using excerpts to their
advantage in court—if so, the fairness doctrine would have controlled.

CRIME-FRAUD EXCEPTION

 Purpose: The attorney-client privilege should not extend to communication

made for the purpose of getting advice for the commission of a future fraud or
crime
o If you come in and seek legal advice and admit to having committed a
crime, that communication is privileged; lawyer will use legal
mechanisms to help you
o What we don’t want to happen is someone using a lawyer to commit
future crimes
 Lawyer does not need to know that his services are being enlisted in the
furtherance of a crime
 “The attorney-client privilege must necessarily protect the confidences of
wrongdoers, but the reason for that protection—the centrality of open client
and attorney communication to the proper functioning of our adversary
system of justice—ceases to operate at a certain point, namely, where the
desire advice refers not to prior wrongdoing, but to future wrongdoing.” (U.S.
v. Zolin)

Rule: Before engaging in in camera review to determine applicability of crime-fraud

exception, the judge should require a showing of a factual basis adequate to support
a good faith belief by a reasonable person that in camera review of the materials
may reveal evidence to establish the claim that the crime-fraud exception applies.
 How do you make this showing? Circumstantial evidence gathered from
other sources to suggest an inference that something happened in this
communication.
 Decision whether to engage in in camera review rests in the sound
discretion of the district court. The court should make that decision in
light of the facts and circumstances of a particular case.
U.S. v. Zolin
 Facts: Evidence at issue are tapes. Cases arises out of efforts of the IRS to
investigate tax returns of Ron Hubbard, founder of the Church of Scientology.

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This case involves the IRS summoning for the production of tapes, in which a
former member, Armstrong, had allegedly unlawfully recorded.
 Government argues the tapes fall outside the crime-fraud exception because
the client communications were made in furtherance of a future crime or fraud
 Holding: Court says the best procedure is in camera review. Just the judge has
access at this stage, not the prosecution. 104(a) can’t mean that the court must
accept at face value what a party is arguing—and says it is not breaking privilege
to review evidence in camera
 Reasoning: Under the crime-fraud exception, to a summons-enforcement
proceeding, attorney-client communications can be considered by the district
court under F.R.E. 104(a), but the disclosure of allegedly privileged materials to
the district court for purposes of determining the merits of a claim of privilege
does not have the legal effect of terminating the privilege. The party seeking in
camera review must make some showing that such review is appropriate.
o If judge rules that crime fraud applies—prosecution gets access,
because of exception to privilege
o If judge rules that crime fraud does not apply—then prosecution does
not get access

SPOUSAL PRIVILEGE
Two widely recognized spousal privileges:
 (1) Spousal Confidential Testimonial Privilege
o (a) communications between spouses
o (b) made while they are married
o (c) in confidence (Trammel)
o Survives after termination of marriage and death
o Holder: Privilege held by spouse who transmitted the confidence
o Rationale: Broad sense of wanting to foster relationship
 (2) Adverse Spousal Testimonial Privilege
o Protects spouse from being compelled to take witness stand against her
spouse about anything—but only applies if couple is married at the time
the testimony is sought
o Holder: Witness-spouse, not the accused spouse holds the privilege
(Trammel); but not all states follow the Trammel decision

Rule: Adverse Spousal Witness Privilege: Witness-spouse holds the privilege. If

the witness-spouse wishes to testify against the accused spouse, the accused spouse
cannot prevent it.
Trammel v. U.S. (U.S. 1980)
 Facts: Heroin importation conspiracy. Hubs goes to trial. Wife offered leniency
in exchange for testimony.
 Husband argues that he must waive before she is permitted to testify.
 Holding: Testifying spouse holds the privilege.
 Reasoning: A rule of evidence that permits an accused to prevent adverse
spousal testimony seems far more likely to frustrate justice than to foster family
peace. “It hardly seems conducive to the preservation of the marital relation to
place a wife in jeopardy solely by…her husband’s control over her testimony.”

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 Hawkins – Rule pre-Trammel said that both spouses had to waive this privilege.
 Modern justification: fostering the harmony and sanctity of the marriage
relationship—if wife is willing to testify, there’s not much sanctity left in the
marriage.
 Additional policy: If husband can bar her from testifying, she has nothing to
offer in terms of government giving her a plea deal.

Confidential Spousal Adverse Spousal Testimony

Communications Privilege Privilege
Protects Confidential communications Spouse from testifying adversely
made during marriage against spouse on any subject
Holder of privilege Both spouses Testifying spouse
Applies in Criminal and civil cases Generally thought to apply only
in criminal cases
To invoke at trial, No Yes
must marriage still
be in effect?

Problems
 10.7 – The prosecutor in a robbery case seeks to have the defendant’s ex-wife
testify that the defendant confessed his guilt while they were still married. The
ex-wife is willing to testify, but the defendant objects. Is the testimony
admissible?
o Answer: Adverse Spousal privilege won’t apply because no longer married
o If anything it’s the confidential spousal communications privilege:
Assuming it was made in confidence, the confidential communications
privilege should apply and even if she is willing to testifying, he can block
her
 10.8 – The prosecutor in a murder-case seeks to have the defendant’s wife testify
that, the night of the victims’ deaths, the defendant came home with a bloody
shirt. The defendant and his wife were living together at the time but were not
yet married. They married the following week. One month later, the defendant
fled the country. He was captured and extradited fifteen years later. The
prosecution offers to prove that while a fugitive, the defendant lived with a
woman and did not communicate with his wife or their children or provide them
with financial support. The defendant’s wife does not wish to testify against him.
May she be compelled to?
o Answer: This is conduct, not a communication.
o She would be describing that he came home on a certain day. We won’t be
talking about confidential communications privilege.
o They weren’t married when conduct occurred, but what matters is whether
they are married at time of trial/when person is called.
o Complicating factor: marriage is a sham
o If you are going to ask courts to decide whether there is anything to
protect, it seems like a slippery slope.

OTHER PRIVILEGES

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Introduction
 Other privileges includes
o Clergymen and penitents
o Journalists and sources
o Accountants (1/3 of states)

Rule: Conversations between client and psychotherapist (or social workers in the
course of psychotherapy) are protected from compelled disclosure based on
privilege
Jaffee v. Redmond (U.S. 1996)
 Facts: After a police officer shot and killed and man, she received extensive
counseling from a social worker. Redmond, officer, was first to respond to the
scene, she goes up to apartment, men ignored her direction to get to the ground.
Redmond shot Allen when she believed he was about to stab the man he was
chasing. Allen’s family sued Redmond saying she used excessive force. Plaintiffs
want the notes from the therapists visits.
 How would the notes come in? The statements would have been admissible
against her under 801(d)(2)
 Defendant’s argue: contents of conversations between therapist and Redmond
were protected against involuntary disclosure by a psychotherapist-patient
privilege.
 Holding: SCOTUS upholds Court of Appeals’ decision to protect the
communications
 Reasoning: Evidentiary need for the contents of the confidential conversations
was diminished here because of eyewitnesses on the scene and Redmond’s
privacy interests outweighing the need.
o Court looks to other states as justification for federal courts to
recognize psychotherapist privilege under F.R.E. 501—all 50 states
have enacted into law some form of psychotherapist privilege
o “By protecting confidential communications between a psychotherapist
and her patient from involuntary disclosure, the proposed privilege thus
services important private interests.”
 Dissent (Scalia): Scalia is troubled by extending this to social workers. Courts
will be called upon to determine whether in fact this was psychotherapy
performed. Scalia says the court is ignoring the traditional judicial preference for
the truth. Scalia says that one of the reasons the A-C privilege exists or how it is
exists is based on the professional status of that person. Social workers do things
other than provide therapy/counseling.
o Similar to his dissent in Gray v. Maryland, he is concerned with the
truth seeking function
o He would prefer to let legislature figure out contours
o Compares this to how there is no mother-child privilege
o To what extent will the evidentiary privilege make it more likely that
people will seek counseling and be completely truthful
 This is the last time SCOTUS recognized a new privilege!

Privileges Recognized in Under Federal Common Law

(recognized as a matter of federal common law, not statute)
 (1) Attorney Client

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 (2) Marital Privileges (Trammel)

 (3) Clergy-Penitent
 (4) Psychotherapist/Licensed Social worker and patient (Jaffee)

Some Qualified Privileges

 Government secrets and informants
 Journalists’ sources
 Trade Secrets

Rejected in Federal Court

 Doctor-patient
 Parent-child
 Accountant-client
o Just because there isn’t federal protection, does not mean that states do
not recognize a privilege
o Even if no parent child privilege, if you are a prosecutor, do you think
you want to put a parent on the stand? No. It’s probably not worth it to
you to put one of these relationships on the stand
 Secret service privilege was argued but it did not go up to SCOTUS
o Court weighed whether president’s privacy interests. If president feels
like he can’t be candid and have conversations around secret service
then we might be worried about his safety
o Seems like president would hold the privilege; court found it weird that
secret service was asserting privilege, not the president
o Secret service agents were forced to testify in the end

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PHYSICAL EVIDENCE

AUTHENTICATION
Introduction
 Authentication and identification represent a special aspect of relevancy
 Trial court is making a 104(b) determination
 Physical Evidence: drugs, clothing, guns
o Only has to be evidence sufficient to support a finding by a reasonable jury
o “I don’t think that is actually the wig” goes to weight, not admissibility
 Document: contract, letter, phone records, email, text
 Recordings: recorded calls, photographs

F.R.E. § 901 Authenticating or identifying evidence.

(a) In General. To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.
(b) Examples. The following are examples only—not a complete list—of evidence that
satisfied the requirement.
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it
is claimed to be.
(2) Non-expert Opinion About Handwriting. Opinion that handwriting is
genuine, based on familiarity with it that was not acquired during litigation
(3) Comparison by an Expert Witness or the trier of fact. A comparison with
an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents,
substance, internal patterns, or other distinctive characteristics of the item,
taken together with all the circumstances
[voucher number, sometimes POs will carve initials]
(5) Opinion About a Voice. An opinion identifying a person’s voice—whether
heard firsthand or through mechanical or electronic transmission or recording…
(6) Evidence About a Telephone Conversation. For a telephone conversation,
evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show
that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call
related to business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by
law; or
(B) a purported public record or statement is from the office where items
of this kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a
document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;

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Authentication of Objects
Bruther v. GE
U.S. v. Castro
U.S. v. Grant

Rule: Gaps in chain of custody go to weight of evidence, not admissibility

Bruther v. General Electric (SD Ind. 1993)
 Facts: Plaintiff was electrocuted while changing light hat his job. He brought
product liability action. Plaintiff could not authenticate the bulb that he wishes to
introduce into evidence.
 Holding: Court finds the bulb came come in—evidence in the record is
“sufficient” within the meaning of 901 to support a finding that the bulb in
question is the bulb that caused plaintiff’s injuries, and that the bulb was
manufactured by defendant
 Reasoning: Rationale of F.R.E. 901(a)—absent a showing that the evidence is
what the proponent alleges, it has no relevance. The determination of whether
the bulb in fact is what the plaintiff claims it is must be made by the jury when it
acts in its appointed role as finder of fact

Rule: A break in the chain of custody affects only the weight and not the
admissibility of the evidence. A trial judge is correct in allowing physical evidence to
be presented to the jury as long as a reasonable jury could decide that the evidence
is what the offering party claims it to be—any question as to the authenticity of the
evidence is then decided by the jury
U.S. v. Catso (5th Cir. 1989)
 Facts: Casto convicted of possession with intent to distribute and aiding in
unlawful distribution of meth.
 Defendant argues break in chain of custody because exhibits 2, 3, 4, 5 which
were packages of meth were sent to DEA and tested over two months later
 Holding: Trial court did not err in admitting the evidence
 Seek a limiting instruction: You’ve heard testimony that this was the
evidence, but there are some people who are missing, so you should not
consider it/weigh it heavily

Rule: There is no need to authenticate the testimony of live witnesses

U.S. v. Grant (2d Cir. 1992)
 Facts: Grant convicted of conspiracy to distribute heroin. Grant contends that
government failed to prove that the packages imported by her traveling
companion contained heroin—making a chain of custody argument
 Holding: Admissible
 Reasoning: Government did not offer the drugs themselves into evidence. Grant
does not contends that the testimony of the chemist who analyzed the package
should have been inadmissible

Authenticating Documents

Rule: To authenticate a document, the proponent need only prove a rational basis
for the claim that the document is what the proponent asserts it to be and may be
done with circumstantial evidence

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U.S. v. Long (8th Cir. 1988)

 Facts: Long and Jackson appeal their convictions of bank fraud. At trial, Mary
Satten, was witness. On direct, she mentioned a contract Long signed prior to
coming in Minnesota. Government did not object to the mentioning of the
contract, but Government and Jackson objected to the exhibit as hearsay.
 Defense counsel argues that the exhibit was not being offered for the truth but
to show Long’s state of mind—that he believed it was a legitimate business
venture.
 Witness is shown contract and looks at is and says, yes, I think this is the
contract. Trial court questioned whether the contract had been authenticated.
 Holding: This was error, document was sufficiently authenticated.
 Reasoning: The question of authenticity here, is not whether the contract was
an authentic contract between Jackson and Long, but whether it reasonably
could be the document which Statten claims she saw and read at the airport. The
contract’s reliability is for the jury to decide. There’s no other way to
authenticate a contract!

Authenticating Recordings
 Phone Call. You want to verify when it happened. This is the phone call that
happened on such date between these two people.
o F.R.E. 901(b)(5) and (6): someone who can recognize the voices
o (b)(5) expressly speaks to opinion identifying someone’s voice based on
hearing the voice at any time under circumstances that connect it with the
alleged speaker
 Email or Text. Circumstantial evidence that puts a person at a particular IP
address—swiping ID card at work, for example

Rule: Just because a piece of physical electronic evidence contains defendant’s

name and photograph does not permit a reasonable conclusion that the document or
web page was created by the defendant on his behalf
U.S. v. Zhyltsou (2d cir 2014)
 Facts: Z convicted after transfer of false identification document. Timku, who got
a deal from the government, testifies that he hired Z to make a false birth
certificate for him. They used a gamil address to send it. Government seeks to
introduce a printout of a web page that the government claimed was Z’s VK.com
(Russian equivalent to Facebook). The page said he worked for Martex and
internet café, Cyber Heaven, which corresponded with Timku’s testimony. AUSA
argued that the Facebook page could also show proof of the connection between
Z and gmail address.
 Defense argues page was not properly authenticated; error was not harmless
 Holding: District court abused its discretion in admitting the VK web page and it
did so without proper authentication in violation of 901
 Reasoning: There was information about Z on the page, but there was no
evidence that Z himself had created the page or was responsible for its contents.
Had the government sought to introduce, for example, a flyer found on the street
that contained Z’s skype address and was purportedly written or authorized by
him, the district court would have required some evidence that the flyder did in
fact emanate from Z

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 Roth: We needed something more here, the government needed to close it up a

F.R.E. § 902 Self Authenticating evidence.

The following items of evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted:
(1)Domestic public documents sealed and signed
(2)Domestic public documents that are not sealed but are signed and certified
(3)Foreign public documents
(4)Certified copies of public records
(5)Official publications [book, pamphlet]
(6)Newspapers and periodicals
(7)Trade Inscriptions and the Like
(8)Acknowledged Documents.
(9)Commercial Paper and Related Documents

little more tightly

Problems
 11.1 – Julia sues Samantha for injuries Julia suffered when her car was hit by
Samantha’s. Julia’s lawyer wants to show the jury a photograph taken of Julia
after the accident, to demonstrate the extent of her injuries. Does the
photograph need to be authenticated? If so, how could that requirement be met?
o Answer: Yes, Rule 901(a) requires that all physical evidence be
authenticated, by showing that a reasonable jury could find that the
evidence is what the profferor says it is — in this case, that the
photograph is a picture of Julia after the car accident.
o Who is the witness with knowledge that can authenticate it?
 Anyone who saw what Julia looked like right after the accident
could lay the foundation for fairly and accurately showing what
Julia looked like
 Key words with respect to photograph are “fairly and accurately”
depict what you saw—we care what Julia looked like. The
photograph is evidence to help us see that. It doesn’t have to be
the photographer. It can be anyone who saw Julia at the time and
can look at the photograph and say yes, that is what she looked
like at the time.
o Here, there are two methods by which Julia might authenticate:
 Rule 901(b)(1): Whoever took the photograph or saw Julia on
the night of the accident can testify as to her condition that night
 Rule 902 (Self-Authentication): Self-Authenticating testimony,
so long as there is nothing facially unworthy of credibility.
Problem with this is that she doesn’t know what her injuries
looked like but she may have looked in the mirror. Roth says she
just might be a little less credible—would go to weight not
admissibility
o Depends on how it is coming in
 11.2 – Clyde sues his torts professor, Harold, for slander, alleging that Harold
said falsely during one of his lectures that Clyde had bribed his way into law

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school. Clyde’s lawyer seeks to introduce an audiotape of the lecture. Does the
tape need to be authenticated. If so, how could that requirement be satisfied?
o Answer: Yes, it needs to be authenticated. If it’s not the recording of
the allegedly slanderous lecture, then it’s irrelevant. How do you
satisfy this?
o Need to authenticate as being recording of the professor—this could be
done through a witness who can say I recognize the recording of this
being the lecture and this is my professor’s voice (F.R.E. 901(b)(5).
o If coming in from someone who made the recording remotely we might
need 2 witnesses
o This was the tape that was recorded at the time! This tape actually is of
that lecture. I have listened to the tape and I was at the lecture and
what is on the tape is what happened at the lecture
o Or the person who recorded the lecture and I know that those are my
initials with the date.
o If it’s recorded on an iPhone, if the witness can get on the stand and I
say I just listened to the recording and this is the recording from the
lecture on that day
o If the person wasn’t there we care more about how it was made

BEST EVIDENCE RULE

Scope and Purpose
 “The rule requires, not as its common name implies, the best evidence in every
case but rather the production of an original document instead of a copy.”
(Lucasfilm)
 Prevailing law has made the best evidence rule a shadow of its former self. There
was a time when the best evidence rule meant what its name suggests—only the
best available evidence on a particular question was admissible
 Application of the rule requires a resolution of the question whether contents are
sought to be proved. If the event is sought to be proved by the written record,
the rule applied.
o Example: Payment may be proved without producing the written receipt
which was given
o Earnings may be proved without producing books of account in which they
were entered
 Rationale: Why require either the original or the electronically created
duplicate? Concern historically was about fraud. In an era before there were
reliable ways of making copies, we worried about the copies not being accurate.
We want to see the original to be able to determine the content—or an accurate
duplicate
o Best evidence rule having resurgence because of these new technologies
o Important in terms of its application today
o Was historically important in terms of contracts
 F.R.E. 1003 – duplicate will generally be accepted unless question raised about
authenticity of original
o 1001(e) counterpart produced by mechanical, photographic, chemical,
electronic, or other equivalent (hand written copy does not count, we
worry about human error)

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 Best evidence only comes in to play when you are offering to prove the
content of the writing, etc.

Analysis
 (1) Is the item in question a writing, recording, or photo, and therefore
something that falls within 1001?
 (2) Is the proponent trying to prove the contents of the document
o Is it a defamation case or parole evidence issue, where document, photo,
etc. legally required?
o Has the litigant chosen to rely on a writing, recording, or photo?
o If yes, apply Best Evidence
 (3) Is there any reason that a duplicate would be unfair, or is there any question
about authenticity? 1003
o If no, a mechanical duplicate will suffice
 (4) Is there a legitimate excuse for not applying the Best Evidence Rule? 1004
o If yes: other evidence is permissible

F.R.E. § 1001 Definitions that Apply to this Article.

In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any
form. [includes email, text]
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any
manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form.
[includes Instagram]
(d) An “original” of a writing or recording means the writing or recording itself or any
counterpart intended to have the same effect by the person who executed or issued it. For
electronically stored information, “original” means any printout — or other output readable
by sight — if it accurately reflects the information. An “original” of a photograph includes

F.R.E. § 1002 Requirement of the Original.

An original writing, recording, or photograph is required in order to prove its content
unless these rules or a federal statute provides otherwise.

F.R.E. § 1003 Admissibility of Duplicates.

A duplicate is admissible to the same extent as the original unless a genuine question is
raised about the original’s authenticity or the circumstances make it unfair to admit the
duplicate.

F.R.E. § 1004 Admissibility of Other Evidence of Content.

An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at
that time put on notice, by pleadings or otherwise, that the original would be a subject of
proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
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Rule: Under Rule 1002, the Best Evidence Rule only applies where the contents of
the writing — material to the resolution of the case — are sought to be proven
Here, it was not the contents of a writing — a transcript of a hearing — that the
profferor was attempting to prove, but what Lamarre had testified to and said
Meyers v. U.S. (D.C. Cir. 1949)
 Facts: Three counts of perjury during testimony before a senate hearing
committee into circumstances of a subcontract of work
 Holding: where there was no attempt to prove the contents of a writing, the best
evidence rule is inapplicable
 Reasoning: There was no issue as to the contents of the transcript and the
government was not attempting to prove what it contained. Here, there was no
attempt to prove the contents of the writing, the issue was what Lamarre had
said, not what the transcript contained

Rule: The Best Evidence Rule does not set up an order of preferred admissibility,
which must be followed to prove any fact. It is, rather, a rule applicable only when
one seeks to prove the contents of documents or recordings (F.R.E. 1002)
U.S. v. Gonzales-Benitez (9th Cir. 1976)
 Facts: defendants were convicted of importing and distributing heroin. They
claim that since the conversations of a certain meeting were recorded on tapes,
the tapes themselves, and not the testimony of one of the participants, were the
best evidence.
 Holding: Trial court was correct in dismissing defendants’ objection
 Reasoning: If the ultimate inquiry had been to discover what sounds were
embodied on the tapes in the question, the tapes themselves would have been
the best evidence. However, the content of the tapes was not itself a factual
issues in the case. The inquiry concerned the content of the conversations.
 Policy/counter argument: The court should have considered whether the trial
court had and abused a discretion to deny admission of the testimony pursuant to
a general best evidence principle. “Fairness to litigants requires that
determinations of the use of the coercive power of the state be made on the best
reasonably available evidence.” (Dale Nance)

Exceptions of the Best Evidence Rule

Rule: As a general rule, the Best Evidence Rule does not apply to photographs
because rarely are they admitted for proving the content within the photograph, but
here where the photographs are of documents, which the Government seeks to
prove the contents of, the Best Evidence Rule does apply
 Photographs of Documents are not “originals” under 1002, but analysis does
not end there
 Photographs of Documents are considered “duplicates” within the meaning of
Rule 1003, because they are the functional equivalents of “photocopies” —
mechanically created that take the scribe out of the process
U.S. v. Stockton (8th Cir. 1992)
 Facts: During a search of co-defendant terry’s residence, photographs were
taken of miscellaneous papers and these photographs were introduced into
evidence.

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 Defendant argues that the government provided no reason why the originals
could not be produced and therefore the district court’s admission of the
photographs violated the best evidence rule
 Holding: Best Evidence Rule does apply in this situation and the photographs
were properly admitted as duplicates under F.R.E. 1003
 Reasoning: The contents of the photographs were at issue in the case—a DEA
agent testified as to the contents of the photographs and specifically read from
the photographs. Agents took photos of miscellaneous papers and agents read
from photographs. Best evidence rule applied because photographs were being
used to prove content.
 Counter example where best evidence would not apply: if offered to show
what scene looked like at apartment, paper strewn about—best evidence would
not apply even though there were writings, so long as they weren’t being offered
to prove the content itself

Rule: Federal Rules of Evidence recognize no “degrees” of secondary evidence and

thus there was no requirement that the copy be introduced in preference to the oral
testimony
U.S. v. Standing Soldier (8th Cir. 1976)
 Facts: Victor standing Soldier was convicted of assault with intent to kill.
Following his arrest, he signed a hand-written statement of his involvement,
which his jailer gave to the Captain, stating that he wanted to talk. Apparently,
the note was lost by tribal or federal authorities, but Captain Hill produced a
typewritten copy at trial from which he testified. The District Court permitted
testimony concerning the note after Hill testified that he had compared the
signature on the note with that of appellant on the signed statement he had made
and found them to be the same. Hill testified that he had attempted to locate the
original note by contacting the criminal investigator and the FBI, but had been
unable to find it, although he thought that it probably still did exist
 Holding: Judgement affirmed, district ct properly admitted Captain’s oral
testimony concerning the note
 Reasoning: Captain testified that he attempted to locate the original note but
had been unable to find it.

Rule:
Seiler v. Lucasfilm, Ltd (9th cir. 1987)
 Facts: Copyright infringement claim. Seiler, a graphic artist, claims that George
Lucas stole his idea and design for “Striders” — a vehicle used to transport
Storm Troopers in Star Wars. Seller cannot locate any documents that antedate
“The Empire Strikes Back,” but he does propose to exhibit a “reconstruction” of
his Striders in a blow-up comparison to Lucas’ Walkers at opening statement
 Holding: Best evidence rule applies. Court says it is a writing under F.R.E.
(1001(a))—“or their equivalent.” Court also says 1004(a) does not apply,
because he lost or destroyed in bad faith. Court is holding that it will not admit
reproductions
 Reasoning: The facts of this case implicate the very concerns that justify the
best evidence rule. Seiler alleges infringement by The Empire Strikes Back, but
he can produce no documentary evidence of any originals existing before the

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release of the move. His secondary evidence does not consist of trust copies or
exact duplicates but of reconstructions made after the Empire Strikes Back.
 What is he offering instead of the original artwork? He concedes he doesn’t have
duplicates or originals, but he has designs he made in 1981 he says were
recreations of his original artwork. He’s not necessarily out of luck in terms of
offering them at © infringement trial.
o Seiler also argues best evidence doesn’t apply to his artwork—it’s
not a writing, recording, or photograph. But court says it falls under “or
their equivalent” of writing
o Does case go forward? No, there’s no triable issue court grants
summary judgement.
 Seiler also argues 1008—court can’t make this determination at the threshold
not to admit my reconstruction, that’s a question for the jury. Court says that he
confused admissibility of reconstructions with the weight that they hold.
o Let’s suppose, if court had excused under 1004(a) they he destroyed but
not in bad faith, and court could excuse his inability to produce an
original or duplicate, how would 1008 apply there? Once court makes
that threshold admissibility determination, then it goes to jury to decide
whether or not there was actually a (c) infringement. 1008(a)–(c) would
be left to jury.
 1004 – excusing production of original is decided by judge as threshold
determination where we apply usual 104(a) preponderance standard

Problems
 11.3 - Farmington Fuel Co. sues one of its customers, Cindy, for ten oil deliveries
that Cindy denies were ever made. At trial, Farmington Fuels calls its office
manager, Marjorie, to testify (a) that the company’s employees always record
each delivery in duplicate, giving one copy to the customer and placing one copy
in the company files, (b) that Marjorie keeps custody of those files, and (c) that
she examined the files and found records of those deliveries.
o At issue is whether these deliveries were made or not.
o Does Best Evident Rule apply? Yes, she’s testifying about content of a
writing. She is not testifying about what she remembers. If she has
independent recollection then she can testify about what she remembers.
Best evidence of the records and what they show are the records
themselves.
o Let’s say they are business records and she can lay the foundation for
them. She may not have a recollection of it, but have her read from it once
the records are admitted into evidence
o If the records don’t exist anymore and you are asking her to recall what
she saw, then it gets hard.
o Distinguishable from Meyers ….
o If it had said: did you find any records pertaining to this date without going
further? If she simply said no—courts have said no best evidence rule
problem.
 11.4 – Law enforcement officers spotted Vincent Bennett’s boat in U.S. waters
near the Mexican border sailing north, away from the border. They boarded the
boat and eventually discovered 1,500 pounds of marijuana hidden inside. Bennett
was convicted of importing marijuana into the United States, based in part on

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testimony from one of the officers that he found a GPS device on the boat, which
included a “backtrack”. The officer testified that when he activated the backtrack
feature, the device plotted the boat’s journey earlier that day from Mexican
territorial waters several miles south of the U.S. Border. At trial and again on
appeal, Bennett challenged this testimony on grounds of hearsay and Best
Evidence. Should either of these objections have been sustained?
o Hearsay: device does not equal declarant. It’s not hearsay.
 Could get interesting if you had a log book that someone kept – then
you would have a hearsay issue: (1) Present sense impression, (2)
Business record
o Best Evidence: Best Evidence rule applies because we are concerned
about what the device said. Is it a writing, recording, or photograph? It’s
something like either a writing or recording, it’s some compilation of
information that has been reduced to an equivalent
 Whether it’s being offered to prove its content? Yes, because the
recording shows where the boat came from, the journey of the boat
o What should the government do when there is a GPS device like this?
Present it in court and have an agent mirror the GPS in court.
 Photograph of what the GPS shows (Stockton); have the agent take a
photograph of what the GPS shows. Could be considered a duplicate
in that situation.
 the agent testifying that this is what he saw is a problem because he
does not have personal knowledge
o What if agent testified that he had turned on GPS device and it
appeared to be working? He’s not testifying about the contents of the
recording.
o What if he says: “I turned on the back-track feature and I didn’t see
anything recorded in it.” Argue that absence of recording is still some sort
of “content.” Courts have held that best evidence does not apply. When
the witness testifies as to absence of record, best evidence is not
implicated but turns on how evidence is implicated
o If he says: “I went through all the information and didn’t see anything
corresponding with Mexico.” Then we have more of a content issue.
o What if officer testifies about model number from exterior of
device? Argue that model # is itself a writing. It is the content of the
model number. If it’s not that critical in the case we might says under
1004(d)—the writing, recording, or photograph is not closely related to a
controlling issue to get out of this issue and it doesn’t matter that much
o Might turn on how complicated the writing is.
o Trial courts have discretion – they can apply best evidence or not treat it a
writing but much of it will turn on how critical the inscription is and how
long it is.
 11.5 – ultimately what they care about is what was said (like Meyers), on the
other hand you can argue that the contents itself are being proved
o Best Evidence: As an intermediate step to figure out what was said, we
have secretary testifying about what she heard on the tape, which would
implicate best evidence rule

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 Majority is saying it is not that simple, because transcript was

generated by someone who made it while they were listening
to the tape
 Transcript is offered as proof what was on that tape—so best
evidence is implicated
 What if you had two witnesses who were there and had two different
recollections and 1 said it reflects what I remember and W2 said it
doesn’t reflect what I heard. Then the relevance is what was on the
tape. s
o Dissent: he is saying what we care about is what happened at the
deposition. Who can look at transcript and say yes, that accurately
reflects what happened at the deposition. Argument for it having no
application—we don’t ultimately care about the content of the tape, what
we care about is what was said at deposition
 Because we have a witness who said yes, this is what was said at the
deposition, we don’t worry about best evidence rule
 If you had a recording and made a transcript of the recording nad
have someone who participated in the call, you could use that
transcript as a demonstrative aid so why is this different?
 Roth agrees more with majority—doesn’t solve it that we can have
someone looking at the transcript
o Transcript is not a duplicate because there is potential for human error.
o 1004
 License plate number. Someone writes down license plate as it is speeding
away. It’s critical issue in this case as to which license plate was involved. Trial –
P calls witness to testify using note as past recollection recorded and defendant
objects best evidence rule. Let’s suppose already in evidence is defendant’s
license plate number and what is at issue is # witness saw. Defense says it
wasn’t be license plate number.
o What actually was license plate witness saw
o Is it a writing? Yes
o It is subject to best evidence? Yes, it’s being offered to prove content
o Under 1004, we might turn to (b)
o Ultimately, the jury has to decide whether it was the defendant’s car that
the plaintiff saw
 Courts often turn to 1004(d)—not a controlling issue. But 1004 are not
toothless provisions
 The Verdict Movie Clip. Was the court correct excluding the photo copy when
they had original? Nurse has said on stand that she changed 1 to 9. Seems like
heart of the case to what patient said
o 1004(a)—true original that once existed when she wrote the “1” doesn’t
exist anymore. The doctored version became hospital’s original but she had
a copy of the “original” where she wrote 1
o Situation where it has to come in. Maybe be some authentication issue.
She is proffering this is a photo copy of original page. 901 must be
satisfied. Is her testimony that this item is what she says it is sufficient?
Her testimony is sufficient, from which reasonable jury could conclude by
preponderance that this is what the form originally said. It will ultimately
go to jury to decide

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o How long since patient had eaten? Admissible for the truth? Do you
need it for truth?
o Recorded in business record that patient said I ate 1 hour before
coming.
 Entered by employee in course of ordinary duties can come in for
record that this is what patient said
 Let’s suppose on causation you want to prove that patient had
actually proven that patient 1 hour before coming in—there you have
problem with business record.
 Patient is not the employee of the hospital. It’s incorporating
information from someone outside the hospital—the truth that it was
from Barry bonds couldn’t come in because
 If you want it in for the truth you need to resort to hospital records.
 803(3)—also argument but we would need to tie back to “I’m full” or
something
DEMONSTRATIVE EVIDENCE
Introduction
 No F.R.E. on point
 Demonstrative evidence is not: The real evidence in the case.
o Information/devices that helps put that real evidence (i.e. phone records)
in context; pedagogical devices that helps the fact finder better understand
and appreciate real evidence
o Supplement real evidence with demonstrations
 As a matter of common law, usually does not go to jury room during
deliberations (Baugh v. Cuprum)
 It is marked for identification, used as aid to jury, but is not admitted into
evidence
 Limiting instruction: Jury is instructed as to limited purpose for which this
evidence is offered
 Objection: Party against whom demonstrative evidence is offered typically
objects—jury is going to be confused, they won’t be able to keep distinction, and
this is unduly prejudicial under 403
o 401
o 403
o 1006
o Left to trial court’s discretion—given the similarity, how helpful is it? Given
differences, how misleading is it?
 Rationale: the theory justifying admission of these exhibits requires only that
the item be sufficiently explanatory or illustrative of relevant testimony in the
case to be potential help to the trier of fact.
 Criticism/Policy: “Demonstrative evidence has continued to hover awkwardly
on the boundary between illustration and proof.” (Jennifer Mnookin)

Examples of demonstrative evidence

 Firearm: Government displayed firearm to jury that was not involved in the case
(Weeks); firearm was not admitted into evidence the way the real firearm would
have been

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 Coin Bags: Gov’t displayed 107 stuffed coin banks (w/ Styrofoam) (U.S. v.
Humphrey); gov’t wanted to show what 107 bags looked like/idea was to show
what the vault actually looked like; like a stunt
 Ladder: D displayed exemplar ladder (Baugh v. Cuprum)
 Maps: problem 11.4 GPS device going through waters between Mexico and U.S.
part of the significance was what the GPS showed. Typically not real evidence.
 Diagrams: Example from class with witness testifying and then looking at the
seating chart and marking where he is and where Josh ran
 Charts: GPS coordinates.
o Agent or paralegal making this, making this digestible as pedagogical aid
o Argument for it to go to jury room—as long as it’s supportable by real
evidence
o If we already have items already in evidence—the GPS coordinates—then
1006 seems to be saying, you can have the chart, but the chart is a
pedagogical device; but if we have something that doesn’t come into
evidence because it’s so voluminous and can’t be conveniently examined in
court (like a GPS device), then you can use a chart and the chart itself
comes into evidence (Wood)
o 1006 does not govern charts used as pedagogical device
o UNDER 1006, you are not offering this voluminous evidence (GPS
device) but instead offering the chart summary
 Day-in-life video: Brings the injury to life—it goes to damages! (Bannister v.
Town of Noble).
o Increasingly, these videos are permitted. Is the testimony about hardships
the same as seeing it in the video? NO! Much more convincing
o We think about 403 and the balancing test.
o What line does court draw? Is this actually a daily life—eating, shower. At
some point it seems more unfair—playing it up for camera
 Computer-generated: “I am now going to ask your honors to enter this as a
demonstrative aid so the jury can see…[where the thief was and where he
ran.]” It’s a pedagogical device

Analysis
 Question for trial court: as to whether the admission will be helpful or mislead
the jury
o “Generally, it is within the trial court’s discretion to determine which
exhibits are provided to the jury during deliberations
o Limiting instruction: “This [x] is not being introduced for the purpose of
attempting to recreate the incident/accident involve in this case. The
plaintiff does not context that the [x] reenacts the accident. The [x] is
introduced only to demonstrate certain physical principles/etc. You’re
instructed to consider this as a reenactment/example of…” (Bannister v.
Town of Noble)
o 403 Balancing: Trial court should weigh the probative value of the
demonstrative evidence against the prejudicial effect (Humphrey, Roland)
o Appellate court review: only for a clear abuse of discretion. (Baugh)

Rule: Demonstrative exhibits that are not admitted into evidence should not go to
the jury during deliberation, at least not without consent of all parties.

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Harmless error: Jury gets something they have been asking for—and verdict comes
out; good fact for showing whether something was harmless error or not
Baugh v. Cuprum (7th Cir. 2013)
 Facts: Plaintiff suffered brain injury by falling off a Cuprum ladder. Cuprum
wanted to use an example of the ladder at trial for demonstrative purposes.
 Trial Court: Ladder was to demonstrate and help the jury understand his
testimony. Trial court permitted the ladder to jury deliberation room and jury
was told not to recreate the occurrence.
 Holding: Abuse of discretion
 Reasoning: trial court should not have allowed ladder to go to jury deliberations
when it was a demonstrative exhibit and there was not consent of all parties.
o “The court eventually decided to cross this boundary by permitting the
demonstrative exhibit to be treated as if it were substantive evidence
and allowing the jury to see, touch, and manipulate it during
deliberations.”

Rule: You can display demonstrative evidence as a model

U.S. v. Weeks (5th Cir. 1990)
 Facts: Weeks convicted of kidnapping.
 Holding: Court did not abuse discretion in permitting the display.
 Reasoning: Although the revolver was not the actual firearm used by the
defendant, it was identified as looking similar to the one Weeks used during the
offenses. Court instructed the jury that the exhibit was merely a model.

Rule: Trial court should weigh the probative value of the demonstrative evidence
against the prejudicial effect
U.S. v. Humphrey (6th Cir. 2002)
 Facts: Defendant employed by bank and charged with embezzling funds. District
court admitted 107 coin bags as demonstrative evidence—to show jury what 107
coin bags would look like and establish that vault did not contain that many bags.
Six of the bags were filled with coins, the rest stuffed with Styrofoam and
peanuts. Defendant claims that Styrofoam bags were prejudicial because they
were bigger than coin bags.
 Holding: District Court did not abuse its discretion,
 Reasoning: District Court did not expressly weigh their probative value against
the danger of unfair prejudice, but it did recognize that the Government wanted
the jury to see what the bags would look like in the Bank’s vault.

Rule: Demonstrative evidence does not have to be completely accurate.

Roland v. Langlois
 Facts: Plaintiff seeking damages from when carnival ride hit him in head. Court
admitted life-size model of a portion of fence surrounding the ride.
 Holding: Benefits of the use of the model were not substantially outweighed by
the danger of unfair prejudice
 Reasoning: Jury was alerted to perceived inaccuracies in the model.

Rule: There is a distinction between whether something can be conveniently

examined in court. If it cannot be (like a GPS device), then a chart will suffice under

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F.R.E. 1006. However, 1006 does not govern charts used simply as pedagogical
device
U.S. v. Wood
 Facts: Tax evasion case, P IRS agency chart admitted as evidence summarizing
tax liability, D witness chart denied as evidence
 Issue: D claims this is error, court doesn’t find it to be
 Holding: 1006 allows for summaries to be admitted, but judge has discretion
o Disparity to treatment must be explained, and it is, because D witness
was unable to support his findings, fact seemed to contradict them, so
judge was warranted to withhold them from evidence
 Example: GPS chart example

Rule: Video Tapes allowed: Day in Life, Physics Recreation. Permitted not as a
reenactment but as a demonstration with appropriate limiting instruction.
Bannister v. Town of Noble
 Facts: Car accident personal injuries P, D objected to 3 videotapes they offered
o Day in the life film – shows adapting to daily life functions with his
injuries
o Demonstration of physics of a car similar to Ps approaching a ramp and
landing
o In closing, a video of tape containing portion of the above two and
videotaped doctor testimony, all parts of which were admitted during
trial
 Issue: D claims these were all unfairly prejudicial
 Holding: District Court did not abuse its discretion. Court finds them all
accurate within their intended purpose and not beyond the discretion of the
court
 Videotape showing the trajectory of his car in accident: These needs to be
from an expert!

Abernathy v. Superior Hardwoods, Inc.

 Facts: P is injured unloading logs off his truck at a sawmill in Indiana. He sues
the company that owns the sawmill. D wants to offer a home-made video with
audio showing logs being unloaded at the mill. Trial court ruled that jury could
watch the video but with no sound. This was a demonstrative exhibit, but was
probably not permitted to go to jury during deliberations.
 Holding: Allowing the sound would have been prejudicial.
 Reasoning: The video was too far removed from what the sound would have
actually been like. The jury could have been instructed that it wasn’t an accurate
representation but risk is that jury won’t follow it
o People might not know what it’s like to unload logs from a truck
o Even if video wasn’t more accurate, but might be sense that it is
relevant

State v. Denton
 Facts: State offers computer-generated animation of events based on various
witnesses’ testimony
o Created by officer based on interviews with witnesses and review of
officers’ report

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 He testifies and the animation is played during his testimony

 He is not offered as an expert. Has no personal knowledge of events
 If you want to have expert recreate through scientific principles, you may be able
to that but you can’t just call a witness to create this composite

Fitbit Evidence
 1001 – data compilation
 being offered to prove content of data
 1) Offer the fitbit into evidence and let jury scroll through, 2) photographs of
what fitbit shows
 Demonstrative aid as well - 1006

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BURDENS, PRESUMPTIONS, & JUDICIAL NOTICE

 Not about admissibility of evidence, not rules about whether evidence can come in—
rules on burden set the ground rules for who has the burden, which the party will
meet by presenting evidence.
 Presumptions: Evidence law recognizes that it is fair to assume that some things
are likely true even if we cannot prove them to be so.
o Shortcuts
o They elimination or lessen evidentiary burdens in proving a fact that is hard to
prove
o Most jurisdictions recognize presumption in favor of delivery—i.e. if you took
the steps to mail a letter, then the law presumes that the letter was delivered
as addressed and jury will be instructed accordingly
o Is there a presumption that is available? Determined by common law or
codified in state system
 Example: You want to prove that a letter was received. Often important for proving
notice (e.g. Yoder). He needs to prove that plaintiff received notice.
o How would you prove receipt with direct evidence?
 Certification/signature from certified mail
 Testimony that person received it
o What related fact could you prove more easily?
 Copy of properly and addresses letter, but not as direct as certified
signature
o The presumed fact is that the letter was received.

Known/basic  Presumed fact

Fact (letter mailed) (letter received)

Burden of Proof
 (1) Burden of production: burden to produce some evidence. Must be met before
case/claim/defense gets to jury (to have the judge render a verdict in the case, you
have to meet this burden to survive the motion for SJ; you need this to get to the
jury. If a party has the burden to persuade the jury that a given fact is true, it
typically also has the burden to produce some evidence of that fact
o aka burden of producing evidence
o aka burden of going forward to next stage
o Must be met to get case/claim/defense to jury or judge as finder of fact
 (2) Burden of persuasion: must be met to obtain verdict. Burden to satisfy the
trier of fact, typically the jury, that a particular proposition has been demonstrated
to a particular level of certainty, i.e. beyond a reasonable doubt in criminal law
o aka burden of proof
o Must be met to win favorable verdict on that issue
o If you have the burden of persuasion and you can’t prove up that letter was
received and all you could do was show evidence of mailing, if you didn’t have
Thayer presumption you might get dismissed early on; value of presumption is
not just at final stage of case, it’s also very significant at earlier stage
o Burdens of Proof
 Beyond a reasonable doubt (criminal)
 Preponderance of the evidence (usual civil cases)

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 Clear and convincing evidence (intermediate standard for high-stakes

civil cases)

Why Gets What?

 Civil Case: If burden of persuasion, you’ll probably have the burden of production.
o D can wind up taking up a burden of production in order to get a certain
defense to the jury, or for the judge to consider it in rendering the verdict
o Example: Title VII – Ps burden of production must make a prima facie case
that she was fired because of race. Then burden of production shifts to the
defendant to show they had a non-discriminatory reason
 Criminal Case: Affirmative: D takes up the burden of production and produce
some evidence that show that the facts support the elements of the defense. Then
the government gets to disprove that affirmative defense.
o D has burden of production, but does not mean he has burden of persuasion

Oregon Examples
Statute usually flows as known fact  presumed fact
 (a) A person intends the ordinary consequences of a voluntary act (Sandstrom)
o Known fact: person acted voluntarily
o Presumed fact: He intended the ordinary consequences
 (c) Evidence willfully suppressed would be adverse to the party suppressing it
 (d) Money paid by one to another was due to the latter
o Known fact: A made payment to B.
o Presumed fact: A owed payment to B/it was due to B
 (e) A thing delivered by one to another belonged to the latter
o Presumed fact: it belonged to the latter
 (q) A letter duly directed and mailed was received in the regular course of mail
 (r) A person is the same person if the name is identical
 (v) A child born in lawful wedlock is legitimate
o Presumed fact: is the child of the marriage
 (w) A thing once proved to exist continues as long as is usually with things of that
nature
 All Morgan presumptions

Two Categories of Presumptions:

Mailbox example
 Thayer: Bursting bubble presumption.
o Proponent of the fact introduces evidence that a properly address letter was
mailed
o If the opponent of PF (that letter was received) introduces no contrary
evidence on the subject, proponent entitled to directed verdict on presumed
fact (i.e. that the letter was received)
o BUT suppose my adversary does not contest receipt with evidence (i.e. takes
stand and says: “I did not receive the letter”)—it becomes an ordinary
question of fact, that’s why it’s called busting bubble
 It “bursts” and disappears from the case. Proponent must persuade the
jury that letter was received, but may rely on evidence of mailing to
argue inference. You just don’t get the statutory presumption
o No evidence to rebut  directed verdict
o Rebut  no more presumption, bubble burst
 Morgan:

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o Proponent offers evidence that a properly addresses letter was mailed.

o If the opponent introduces no evidence that letter was NOT received,
proponent entitled to directed verdict on PF (i.e. that letter was received)
o But if the opponent introduces evidence that the letter was NOT received (e.g.
by testifying), what happens to presumption? It stays in the case and shifts
the burden of persuasion regarding non-receipt to the opponent. Now
opponent must persuade the jury that letter was not received.
o Usually, P brings claim and you have burden of producing sufficient evidence
to get it to point where you are seeking a verdict. If you get a Morgan
presumption, you get to flip that burden of persuasion at least on issue of the
presumption—and your adversary has to persuade the jury
 Rationale: If presumption is valid, if properly addressed letters are
usually received—that relationship of the KF and PF, we think that
presumption and relationship ought to have ongoing fact. Just because
there is some evidence rebutting PF, it’s warranted to flip the burden of
persuasion
 Higher bar for what ought to be classified as presumption

BURDENS & PRESUMPTIONS: CIVIL CASES

F.R.E. § 301 Presumptions in Civil Cases

In a civil case, unless a federal statute or these rules provides otherwise, they party against whom a
presumption is directed has the burden of producing evidence to rebut the presumption. But this
rule does not shift the burden of persuasion, which remains on the party who had it originally.
[federal question jurisdiction]

Codifies Thayer: You meet your burden of production (by saying you mailed your letter) then
presumption is in place. But if D rebuts (I never received it) then presumption disappears and has
no legal effect. When someone has the persuasion and other party offers contrary evidence, bubble
bursts and party who originally held it, still has burden of persuasion. Proponent benefits from
presumption when opponent does not object.
Compare to Morgan: Even if the opponent of the presumed fact introduced evidence about
the presumed fact, the presumption continues to affect the case. The court will instruct the
jury to find the presumed fact is true unless the jury is persuaded by the opponent of the
presumed fact that the presumed fact does not exist.

F.R.E. § 302 Applying State Law to Presumptions in Civil Cases

Rule: Presumption is a preliminary assumption of fact (i.e. the letter was

delivered) that disappears from the case upon the introduction of evidence
sufficient to sustain a finding of the nonexistence of the presumed fact (i.e. I did
not receive the letter)
In Re Yoder (6th Cir. 1985)
 Facts: Bratton seeks to collect against D (Yoder) in product liability suit for loss of
four fingers resulting from use of product. D is bankrupt. Bratton files late proof of
claim. Bankruptcy court holds that p’s claim is barred because p fail to file timely
proof of claim in bankruptcy court. Defendant (proponent) is arguing that notice was
given, and to prove that, they were using preemption that since it was mailed, it was
received. Plaintiff is the opponent to this presumption—he’s trying to show his

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untimeliness is excused because he never got a notice of that due date. Factually it
comes down to whether P received notice of due date. P (opponent to presumption)
brings attorney (whose D’s letter was addressed to) to testify he did not receive it.
 Morgan: Trial Court erred: it looked at the proposed 301 rule, which was a Morgan
presumption.
o Yoder is party seeking benefit of presumption
o What happens if there is evidence to contradict receipt
o If it’s a Morgan presumption—who bears the burden on issue of receipt?
Bratton/plaintiff
o He has burden of persuasion that he did not receive it.
 Thayer: Burden of persuasion remains with defendant (proponent of presumption
here). Yoder keeps burden of persuasion that letter was received, but does not
receive a directed verdict.
 Issues: Did plaintiff receive notice of the latest date for filing proof of claims in
bankruptcy court? He says he did not receive the letter? Where is the burden of
persuasion? By virtue of presumption, P met his burden of production, so now it
becomes, how bears the burden of persuasion?
 Holding 2: FRE adopts Thayer view.
 P fulfilled burden of production to rebut presumption. Since this is Thayer
jurisdiction, bubble bursts for the presumption, and that means the burden of
persuasion remains with D (proponent of presumption) to prove receipt. The fact
that there is evidence of it being addressed and mailed is still evidence towards it
being received, but D dot not get directed verdict (on presumption of receipt)

Problems, p. 748
 12.1 – § 641 CA Evidence Code. CA tenant slips in hallway of her apartment breaks
collarbone. To prove negligence, the tenant testifies that 3 weeks before the
accident, she mailed the landlord a correctly addressed, properly stamped letter
complaining that the hallway was slippery. The landlord testifies he never received
the letter. The tenant asks the judge to instruct the jury that, if they conclude that
her letter was correctly addressed and properly mailed, they must find that it was
received in the ordinary course of the mail. Should the judge give the instruction?
o Instruction is Thayer presumption. Bubble has burst and judge should not
give instruction once the presumed fact has been rebutted
 12.2 – § 667 CA Evidence Code. Issue is whether Saul is alive. Evidence of the
known fact—no one has heard from him—and then it is rebutted by testimony that
someone has heard from him.
o What’s the jury being told about who has the burden of persuasion
o Wife is the party against whom the presumption is directed
o “you have heard evidence he has not been heard from, if you find no one
has heard from him. You should find he is dead unless you are persuaded
by preponderance of evidence is alive.” Saul’s wife has burden of
persuasion on whether she is alive. (Morgan presumption – burden is on
party against whom presumption is directed)
 12.3 – § 636 CA Evidence Code. Is there evidence offered to rebut presumption
here? Defendant claims first 3 installments were not paid but introduces no evidence
and does not challenge authenticity (in pleadings). No evidence offered to rebut the
known fact. Plaintiff gets directed verdict.

BURDENS & PRESUMPTIONS: CRIMINAL CASES

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 Mandatory Presumptions: Jury must accept the presumed fact as true, unless the
defendant offers evidence rebutting it
o This effectively excuses the prosecution from the burden of proving every
element of her case against the defendant
o Undermines the defendant’s right to stand mute and leave the prosecutor to
her proofs
 Due Process clause requires the government prove every element of an offense
beyond a reasonable doubt (Winship/Patterson)
 Burden of production: Government bears burden of production
o Example: Interstate commerce. Gov’t produces no evidence, they haven’t born
production and defendant could get it thrown out
o Assume they meet burden of production
o Not preponderance, it’s some evidence
 Burden of persuasion: government bears burden of persuasion of proof beyond a
reasonable doubt to each element of the crime (In Re Winship – SCOTUS said that
proof beyond a reasonable doubt standard is Constitutionally required under DP
clause)
o Defendant who wants to offer affirmative defense bears burden of production
as to elements of the affirmative defense
o Who bears the burden of persuasion as to affirmative defenses is a hot potato.
It’s up to the jurisdiction. Most keep the burden of persuasion on defense who
asserts affirmative defense—if you have burden of production you also have
burden of persuasion
o Some jurisdictions shift back to government to disprove affirmative defense

Rule: States can allocate burden of persuasion to affirmative defense, even so far as to
proof beyond a reasonable doubt
Leland vs. Oregon (1952)
 Case involving insanity defense in Oregon
 Oregon’s rule: defendant bore burden of persuasion for defense of sanity
 Holding: This is okay

Rule: You can’t shift the burden to defendant to disprove an element. If affirmative
defense you can put burden on defendant, but if an ELEMENT you cannot shift to
defendant
Mullaney v. Wilbur (1975)
 Holding: Court held unconstitutional Maine’s murder manslaughter scheme which
defined murder as a killing with malice, resulting from a deliberate, cruel act
“suddenly, without a considerable provocation”
 Lack of provocation was presumed but could be rebutted by D, showing by
preponderance that he acted upon considerable provocation. Juries were being told
they should presume there was lack of provocation
o Known fact  deliberately killed someone
o Presumed fact  without provocation (jury is told they can infer this)
 Government has to prove every element of the offense beyond a reasonable
doubt—element of the offense is a negative (without a considerable provocation), so
because of the presumption government does not have to prove it and it lessens
prosecution’s burden in a way that is unconstitutional

Rule: Defendant providing affirmative defense is not traditional burden shifting unless
d has to prove elements of the crime (which is prosecution’s burden). When it is an

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additional thing defense is presuming and nothing is presumed to benefit of

government, it is constitutional. No presumption in favor of the government.
Patterson v. NY (1977)
 Facts: Defendant Patterson estranged from wife Roberta married. R having affair. P
sees affair and kills Northrup. Defendant admits to killing Northrup but raises
emotional disturbance defense at trial. NY allows affirmative defense to mitigate
charge from murder to manslaughter
 NY defines elements of second degree murder: (1) intent to cause the death of
another person, and (2) causing the death of such person.
 Defendant bears burden of proving emotional disturbance defense—burden of
production and persuasion
 Holding: Court says burden shifting here is fine.
 Reasoning: Defendant does not have to disprove anything in government’s case, he
only has to prove something different that stands a party. This is unlike Mullaney,
even though there is a relationship between affirmative defense and intent, one can
both intend to cause the death (element) and be suffering from extreme emotional
disturbance (EED) (affirmative defense)

Sandstrom v. Montana (1979)

 Facts: D charged with deliberate homicide, defined under Montana Law as: (1)
Purposefully or knowingly causing a death. Defense was to negate purposefulness
 Instruction: “The law presumes that a person intends the ordinary consequences of
a voluntary act.”
o Elements of murder and presumption jury receives—does this fall under
impermissible Mullaney category
 Holding: Unconstitutional.
 Reasoning: Evidentiary burden of prosecution is being lessened and that’s not okay.
Montana has an additional mens rea element that government is not being required
to prove.

Rule: Permissive inferences are constitutional if rational in light of the facts of the case
County Court of Ulster v. Allen (1979)
 Facts: Three people in car, 3 adult men and one 16-year old girl. All charged with
possession of firearm. Presumption of possession of gun, if gun found in the car all of
occupants are presumed to be in possession.
 Trial court instructs jury about using the fact of the defendant’s presence in the car
to infer their construction possession of the gun: “Out penal law also provides that
the presence in an automobile of any machine gun or any handgun or firearm which
is loaded is presumptive evidence of their unlawful possession.”
 Holding: Permissive inferences are constitutional if rational in light of the case.
SCOTUS does not read this as a mandatory presumption.
 Reasoning: This doesn’t shift a burden to the defendant to do anything. The
instruction is clear that burden is on prosecution. SCOTUS says this one is okay
because it is permissive. How does permissive instruction help prosecution? To tell
jury, it’s okay to presume this—it is helpful
 Instruction: may or may not  not mandatory presumption. If it was mandatory, it
would be unconstitutional. Mandatory means if they were in car with gun, you MUST
find all occupants in possession
o A “may” presumption is constitutional

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o What has to also be true to give the permissive inference instruction?

Connection has to be rational in this case. IN another cases involving 4
people, judge might say it is not permissible.
o Here, court said they were big guns, and had narrative of they were
shoving guns in girl’s purse
o Court is saying if the presumed fact is a reasonable inference from the
known facts, it’s okay to give that permissive inference instruction. But
when facts don’t support it, you can’t give instruction

Burdens and Presumptions in Criminal Cases

 Presumptions in criminal cases evaluated in light of the their effect on the
government’s burden of proof (Mullaney)
 Permissive inferences are constitutional if rational in light of the facts of the case
(Allen)
 Mandatory presumptions unsensational because they relieve government of its
burden (Allen/Sandstom/Patterson)

JUDICIAL NOTICE
 Judge taking notice of a fact that is essentially beyond dispute but for whatever
reason, the parties have not agreed to stipulate to it. Typically, if a fact is so
straightforward, parties will stipulate to it.
 We want to avoid inefficiencies at trial. Judicial notice is one of the ways we can do
this. Say it is relevant that the defendant proves that Sunday, May 22, 2016 was a
Sunday, because mail is not delivered on Sunday. We don’t want to waste time
requiring the defendant to call a witness to prove this
 Rationale: If we didn’t let judges and juries take notice of these types of facts, trial
would take verrryy long
 Adjudicative Facts: facts of the particular case—who did what, where, when, why
how. Court taking notice of adjudicative fact is governed by F.R.E. 201
 Legislative Facts: Facts that related to legal reasoning and the lawmaking process,
whether in the formulation of legal principle or in enactment of legislative body…;
“facts or pronouncements that do not change from cases to case but apply
universally, while adjudicative facts are those developed in a particular case.” A
court can take notice of a legislative fact. Example: when spouses testify against
their spouse we think it be likely to destroy almost any marriage/counter to this in
Trammel—if someone is willing to testify, marriage is beyond repair
o This seems like an opinion, presented as a fact, Roth says
 Two Ways of Thinking About Legislative Facts
o (1) Policy making process (Hawkins)
o (2) Things in the world that the court has determined are universal or are
legal questions (legal questions vs. factual questions)
 F.R.E. 201, court must take notice of an adjudicative fact under two circumstances:
o (1) Fact is generally known within trial court’s jurisdiction
o (2) Fact can be accurately and reasonably determined from sources whose
accuracy cannot reasonably be questioned
 Twentieth Century Fox case: Marvel sells exclusive rights in X-Men character.
Marvel then develops and markets products showcasing new set of character
(Mutant X). Fox sues M for break of K and other claims, including violation of Fox’s
acquired IP rights in X-men character. Fox contends that in both works, “a super
intelligent and wealthy good mutant seeks out young mutants…” such “struggles are

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typical of superheroes” and “complicated person relations are typical of any drama.”
Court takes judicial notice of Star Wars: “One example is the nurturing
character of Luke in Star Wars, of which the Court takes judicial notice” and
footnotes with judicial notice explaining what Star Wars is
o No one had talked about Star Wars, but court wanted to use it as an example
o Court didn’t say anything about taking judicial notice about earlier statement
—idea of nurturing somebody is common to fiction in general

F.R.E. § 201 Judicial Notice of Adjudicative Facts

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative
fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a
fact that is not subject to reasonable dispute because it:
 (1) is generally known within the trial court’s territorial jurisdiction; OR
 (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
(c) Taking Notice. The court:
 (1) may take judicial notice on its own; or
 (2) must take judicial notice if a party requests it and the court is supplied with the
necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the
propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes
judicial notice before notifying a party, the party, on request, is still entitled to be heard. [
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the

Analysis
(1) Adjudicative or legislative fact
 Two Different Schools of Thought
o Gould, Bowers: tk
o Bellow: An alternative definition of the distinction between adjudicative
and legislative facts depends not on the nature of the fact but on the use
made of it. Is a fact germane to what happened din the case or a fact useful
in formulating common law policy or interpreting a statute
(2) F.R.E. 201 applicable?

Gould (common law federal Bello (1st Circuit)

interpretation
Legislative facts are not governed by the Legislative facts are defined as in Bello to
restrictions in F.R.E. 201, including the be those facts used to formulate rules of
requirements that judicially noticed facts general application rather than simply to
be beyond a reasonable dispute. It is true resolve particular disputes, it becomes
that this restriction is often applied as a more reasonable to say that legislative
matter of federal common law to facts facts should not be governed by any of the
deemed legislative restrictions in F.R.E. 201

Under the more common approach

suggested by the Advisory Committee and
exemplified by Gould, whether the fact

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qualified as an adjudicative or legislative is

harder to say The nature of the fact does not determine
what type it is, instead the use of the fact
Any universal truth is legislative fact is what matters

Rule: Court takes a broad view on the definition of legislative fact—and F.R.E. does not
apply to legislative facts. With a legislative fact, it is permissible for the judge to
instruct the jury that they must accept the fact.
U.S. v. Gould (8th Cir. 1976)
 Facts: Drug case. There’s no testimony that cocaine comes from coca leaves, but
judge takes judicial notice and jury is instructed: “If you find the substance was
cocaine hydrochloride, you are instructed that cocaine hydrochloride is schedule II
controlled substance under the laws of the U.S.” Notwithstanding fact there was
evidence in record saying this substance seized from defendant is this substance on
the schedule. The substance you heard about is that is banned is essentially what the
jury was told
 Holding: 8th Circuit upholds trial ct’s instruction to jury because it is a legislative
fact, F.R.E. 201 inapplicable
 Reasoning: The district court was not obligated to inform the jury that it could
disregard the judicially noticed fact. Legislative facts do not change from cases to
case—this is more than what the advisory committee formulated as a legislative fact.
What schedule the drug is on is a legal question.
 If this was found to be an adjudicative fact, it would have been overturned
because in this case the judge said the jury has to accept the fact.

Rule: Trial judge is prohibited from relying on his personal experience to suppor the
taking of judicial notice
U.S. v. Lewis (9th Cir. 1987)
 Facts: Bank robbery prosecution. Defendant was heroin addict and confessed. Judge
takes judicial notice that defendant is accountable for what he said based on the
judge’s personal experience
 Holding: Reversed/remanded; this type of taking of judicial notice is improper
 Reasoning: This is unlike taking knowledge of commonly known health facts; judge
did not rely on facts generally known

Rule: Judicial notice is only appropriate when the fact is something of general, common
knowledge OR the accuracy of which cannot reasonably be questioned. If
questionable  can’t take judicial notice…
Carley v. Wheeled Coach (3d Cir. 1993)
 Facts: Products liability case. District court took judicial notice “of the fact that the
government conducts numerous crashworthiness tests, and the well known rollover
problems of vehicles having a high center of gravity.”
 Holding: Remanded
 Reasoning: While government may perform various tests on vehicles, the quantity
and nature of those tests are not matters of common knowledge, nor are they readily
provable through a source whose accuracy cannot reasonably be questioned.

Rule: A legislative fact is one that does not change from case to case
U.S. v. Bowers (5th Cir. 1981)

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 Facts: D convicted for cruelty to child. Contests taking of judicial notice that “Fort
Benning, Georgia, is on land which is property of the U.S. and under jurisdiction of
the U.S.” Instructs jury in mandatory way. Whether verdict can be sustained on
appeal turns on whether this is a legislative fact, rather than adjudicative fact
 Holding: Legislative fact. This is a well-established fact appropriate for judicial
notice.
 Reasoning: Unlike an adjudicative fact, this fact does not change from case to case
but, instead, remains fixed
 Note: If there is a factual dispute about where the crime occurred, it is an
adjudicative fact—and won’t fall under judicial notice
o BUT once established where it happened, judge can give instruction about
status of that land

Rule: The nature of the fact does not determine what type of fact it is—instead the USE
of the fact is what matters.
U.S. v. Bello (1st Cir. 1999)
 Facts: Issue was assaulting fellow inmate at Puerto Rico detention center and
question is whether PR detention center was within jurisdiction of the U.S. Court
again takes judicial notice for a jurisdictional element – location of the crime. Here,
geography is an adjudicative fact!
 Holding: Status of this territory is an adjudicative fact thus F.R.E. 201 applies.
An alternative definition of the distinction between adjudicative and legislative facts
depends not on the nature of the fact but on the use made of it. Is a fact germane to
what happened din the case or a fact useful in formulating common law policy or
interpreting a statute
 Court analyzing more under F.R.E. 201(b)(2). Government presented maps and
sources whose “accuracy cannot reasonably be questioned.” Geography is this
prototypical area where court would take judicial notice, pre-Google maps
 If you’re seeking judicial notice, you are presenting to the court some sources

Problems, p. 775
 12.6 – Court should sustain the objection. While it is something of common
knowledge, it’s not a fact that cannot be readily provable through a source whose
accuracy cannot reasonably be questioned—someone could question this expert on
the history of calendars, etc.

 12.7 – overrule the objection—this is an adjudicative fact in this case

 12.8 – sustain the objection.

 12.9 –
 12.10 –

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