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I. INTRODUCTION a. Why do we need the Rule of Evidence? i. Mistrust of Juries want to ensure accurate fact-finding 1. Control information jury receives, b/c no checks on what occurs during deliberations. a. Hearsay assume amateur fact-finders cannot properly evaluate statements made outside of its presence b. Character assume juries place too much weight on such proof incorrectly. b. What is evidence for purpose of the evidence rules? i. The evidence rules are directed to the words spoken by witnesses and the tangible evidence shown to the fact-finder. The rules dont apply to facial expressions, body language, tone of voice, arguments, statements by judge, etc.




a. Pretrial Motions attys meet with judge to try to settle or agree on various issues. Jude might resolve outstanding issues by making evidentiary motions. Prevents prejudice to jury via exposure of inadmissible evidence. b. Jury Selection voir dire c. Preliminary jury instructions d. Opening statements i. /Pros usually goes first. can then go immediately after, or after s entire case-in-chief. Not an argument, so no advocating. Counsel presents fact-finder w/ brief roadmap of case.

e. Presentation o Evidence & Limiting Instructions i. Several forms of evidence: 3. Witness testimony b. Direct open-ended questions, no leading. Broad or narrow. Usually calls for long narrative answers. c. Cross leading question permitted; used to control witness.

4. Presentation of docs includes demonstrative evidence (charts, graphs, re-enactments) ii. iii. Presenting Evidence throughout trial court may rules on issues. To prevent confusion/prejudice, this is done outside jurys presence. Limiting/Cautionary Instructions 3. After ruling on an evidentiary motion (1) if court sustains an objection, will instruct jury to disregard questions, (2) if court grants motion to strike witnesss answer, will instruct jury to disregard answer. 4. Rule 105. Limited Admissibility If evidence is admissible as to one party or for one purpose but not another, the court shall restrict the evidence to its proper scope & instruct jury accordingly. iv. Stages of Presentation of Evidence 3. /Pross case-in-shief assert affirmative argument; establish prima facie case 4. s case-in-chief if affirmative defense, establish prima facie case. Offer evidence undermining s case. 5. /Pross rebuttal can rebut s case-in-chief, but limited to issues raised by . Ct may grant surrebuttal. v. vi. vii. viii. Motions after Presentation of Evidence parties may ask court to decide on all or parts of the case as a matter of law. Closing Arguments use evidence inferences to show jury why they should find in their favor Jury Instructions Jury Deliberation & Verdict 3. 2 types of verdict: b. General verdict declares who wins & remedy c. Special verdict jury answers specific questions. Court uses answers to determine precise verdict. 4. Jury deliberations in secret; court usually allows jury to examine evidence & if testimony, then jury comes back to courtroom to hear court reporter read from transcript ix. II. Post trial motions & Entry of judgment - JNOV, etc.


a. Rule 103(a)(1) & (2) to successfully appeal an evidentiary error i. Must preserve issue for appeal by making an objection or offer of proof 1. Objection must be timely & states specific ground, unless obvious. Timely means as soon as basis for objection is clear right away. 2. Offer of proof record of what excluded evidence would have been, unless apparent.


Must persuade appellate court that trial court committed an error in admission or exclusion of evidence 1. Note: Diff btwn may (discretionary) & must (no discretion) rules for judges.


The error affected a substantial right it was prejudicial




a. Witness Competency i. Rule 601: General Rule of Competency: Every person is competent to be a witness except as otherwise provided in these rules. 1. Children - Even a small child can be a witness, although other issues arise reliability, etc. a. New York i. ii. To be competent, the court must be satisfied that the witness possesses sufficient intelligence & capacity to justify reception of evidence. A child may not testify unless under oath or affirmation. If child is incapable of understanding an oath, she is equally incapable of testifying. NY law says a witness understands the nature of an oath if he appreciates diff btwn truth/falsehood, the necessity for telling truth, & that you can be punished if you dont tell truth. 1. However, the NY Fam Ct Act makes an exception giving judge discretion on whether or not to place minor under oath 2. But, in quasi-crim/Crim cases, no finding can be based on unsworn evidence of a child. 2. In civil, if state law applies to substantive element of claim/defense, then competency also determined by state law. 3. Rule 610: Religious Beliefs or Opinions a. Evidence of religious beliefs/opinions of a witness is not admissible for the purpose impairing or enhancing a witnesss credibility. ii. Exceptions to Rule 601 1. Rule 605 Competency of Judge as Witness: The judge presiding at the trial may not testify in that trial as a witness. No objection need be made to preserve the point may offend judge by objecting; also obvious error 2. Rule 606 Competency of Juror as Witness a. At the Trial. A member of the jury cannot be a witness in the same trial. If called to testify, opposing side may object out of presence of jury.


This can be done afterwards b/c juror & perhaps entire jury may be offended by objection so objection doesnt need to be done wirhgt away (exception to Rule 103(a)). Point is to allow objection to be made at a time when they wont be ufairly prejudiced by it.

b. Inquiry into validity of verdict or indictment a juror may not testify to any matter or statement occurring during jury deliberations, or of any jurors mental process. i. But a juror may testify about: 1. Extraneous prejudicial info that was improperly brought to jurys attention 2. Outside influence improperly brought to bear upon any juror; or 3. A mistake in entering verdict on verdict form. a. Note this only applies to clerical errors not mistakes regarding facts, law, etc. ii. Distinction btwn evidence of outside influence (admissible) vs. internal (inadmissible). 1. Tanner v. United States - After s convicted of mail fraud, they moved for a new trial on ground of juror misconduct. 2 jurors admitted to defense counsel that during the trial some jurors were drinking alcohol, one constantly smoked pot, others ingested cocaine, & some falling asleep during trial. Held that evidence of juror misconduct was inadmissible under Rule 606(b) b/c it was not outside influence, but rather internal to the jury. 2. Reasons for distinction a. Jurors should feel free to decide case w/o fear of having their thinking dissected, b. allowing inquiry into the mental operations & emotional reactions of juries would invite tampering & harassment, & would put every verdict in jeopardy. c. Finality would never be achieved. d. Inquiries into outside influences such as threats, bribes, or introduction of prejudicial information, can be pursued without intruding into jurors private mental process and without deterring full and frank discussion in the jury room. i. So a juror can testify that another juror brought a prejudicial newspaper account into the jury room or that someone threatened a juror in order to induce a certain verdict.

3. Some possible exceptions: (veering away from a strict reading of the rule) a. Where jurys verdict was reached by chance rather than by a rational process, the evidence that verdict was reached by flip of a coin is admissible in some states. In this case, the reasons we protect jury deliberations dont apply.

b. Where verdict was reached b/c of racial prejudice per rule 606(b), still would be inadmissible. But valid argument that here theres no reason to insulate verdict from scrutiny. Finality is desirable only where the verdict is the product of values within some acceptable range of principles. iii. iii. Rule 606(b) only limits a juror from testifying. Other witnesses are competent to testify to jury misconduct that they observe personally.

Competency of Witness Whose Recollection has been refreshed through Hypnosis. 1. Witnesses frequently suffer from memory problems, so law enforcement agencies have used hypnosis to help witnesses remember details. But when these witnesses are later called to testify, there may be a reason to fear that the hypnosis may have made their testimony unreliable. Hence, some courts have held that such witnesses are either entirely or partially incompetent. a. Credibility: Rule 601 assumes that jurors are able to understand credibility problems and, thus, can accurately weigh the testimony of a witness. Credibility issues associated with a witness who has been hypnotized may be different. i. The witness appears more certain as a result of the experience and is unable to distinguish actual and false memory. As a consequence, the jury may not be able to accurately weigh the testimony in the usual manner by observing the demeanor of the witness and hearing the cross examination.

b. Entirely Incompetent Some courts hold that witness cannot testify at all if hypnosis used. i. People v. Shirley Pros for sexual assault. Trial court permitted the victim to testify after her recollection was refreshed through hypnosis & after was able to recall certain critical & incriminating facts. was convicted. CA Supreme reversed, concluding that the witness was not competent to testify because the professional literature demonstrates beyond any doubt that at present time the use of hypnosis to restore the memory of a potential witness is not generally accepted as reliable by the relevant scientific community. 1. Under rule 601, the witness here would be competent. Rule 601 on competency does not make a distinction b/c of the use of hypnosis. c. Partially Incompetent Some courts (state laws) hold that only partially incompetent meaning that they can only testify to matters recalled before hypnosis. i. If the witness is the in a criminal proceeding, a state law or court ruling that limits s testimony due to the use of hypnosis (making witness incompetent) is unconstitutional because it violates the s constitutional right to testify in her own defense. 1. Rock v. Arkansas was accused of shooting her husband. She gave a sketchy account of the incident; her atty then arranged hypnosis. She recalled while under hypnosis facts suggesting she did not have her finger on the trigger and the gun discharged when her husband struck her arm. An expert then tested the gun & verified it could go off w/o the trigger being pulled. Arkansass incompetence rule for witnesses whose memories were refreshed by hypnosis was that witness only permitted to testify matters recalled prior to hypnosis. was convicted. SC

reversed on the ground that the state law violated s constitutional right to testify in her own defense. a. However, a state can create a rule of evidence that identifies the circumstances under which evidence of a specific type might be so unreliable as to be inadmissible. d. New York Rule i. People v. Hughes rape victim was unable to positively identify her attacker until after she had been hypnotized. Trial court permitted the witness to testify to all that she remembered, saying that hypnosis was just a method of refreshing recollection, and any issues with that considered under credibility. Ct Appeals disagreed; held that witnesses are incompetent to testify to post hypnotic suggestions. Hypnosis is not generally accepted by scientific community as a reliable method of refreshing recollections. 1. Inherently suggestive procedure that taints potential witness in three ways: a. The witness may be susceptible to suggestion given by the hypnotist or others present. b. The witness may confabulate or intentionally fabricate facts to fill in blanks. c. The witness may acquire artificially enhanced confidence in her pre-hypnotic memory, impairing cross-examination. 2. But, hypnosis does not necessarily render a witness wholly incompetent. Witness may testify to matters recalled prior to hypnosis, provided that hypnosis did not substantially impair opponents ability to cross-examine. a. Pretrial hearing must be conducted to establish the extent of the witness prehypnotic memory. i. ii. iii. iv. Mark permissible testimonial boundaries. Examine circumstances of hypnotic session Ascertain whether procedures used may have unduly tainted the prehypnotic recollections. Did procedures unfairly impair opponents ability to meaningfully crossexamine witness?

b. The Personal Knowledge Requirement

i. Rule 602: 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. 1. Rationale: a. common laws insistence to have the most reliable sources of information. b. Shield jury from unreliable evidence. Evidence to prove personal knowledge may, but need not, consist of the witness own testimony.

2. The personal knowledge requirement applies to testimony of all lay witnesses, but is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. ii. Sufficient to Support a Finding: 1. This is a lower standard than preponderance of the evidence. So, perceptions can be limited or flawed without disqualifying the witness. a. However, evidence concerning the problems of perception is admissible to permit the jury to weigh the witnesss testimony. 2. A determination of personal knowledge is made under Rule 104(b), thus preserving for the jury its essential role of deciding what weight to give testimony. (see infra, ) iii. Requirements of Personal knowledge: 1. Perception by the 5 senses sight, hear, smell, touch, taste (no dreams) 2. The ability to understand the perception if witness hears something in a language he does not understand, there is perception, but since he cannot understand, theres still no personal knowledge. 3. Present Recollection a witness cannot just read s document, although the document may be admitted or used to refresh recollection 4. Ability to communicate what was perceived, understood and recalled iv. Lack of personal knowledge v. hearsay 1. Hearsay - if the witness quotes or attributes the out of court speaker 2. Lack of Personal Knowledge - If the witness simply repeats the facts described in the out-ofcourt statement, but does not attribute the out of court speaker 3. Example: There is a shooting. A witness did not see the shooting, but heard a police officer say that was the shooter. a. If witness testifies: was the shooter, there is lack of personal knowledge. b. If witness testifies: The officer told me was the shooter, there is personal knowledge, but this would be hearsay.

c. The Oath or Affirmation Requirement

i. Rule 603: Before testifying, every witness shall be required to declare that the witness will testify truthfully by oath or affirmation truthfully, affirmation, administered in a form calculated to awaken the witness conscience and impress the witness mind with the duty to do so. 1. Rationale: a. Need to establish predicate for perjury prosecution. b. Need to impress upon witness importance of being truthful. 2. Affirmation means promising to testify honestly. So if an atheist refuses to take an oath, they can still make an affirmation to tell the truth & be prosecuted for perjury.



a. Introduction i. ii. Evidence comes in two forms: (1) Witness testimony and (2) Tangible Evidence Tangible evidence 1. PROPONENT MUST LAY THE PROPER FOUNDATION!!! a. Authenticate the evidence i. ii. iii. Things may not be taken at face value Cant assume it is what it appears to be You must prove the point

b. Mark it for identification i. By asking witness these questions, you authenticate: 1. Do you recognize? 2. What do you recognize it to be? 3. How do you recognize it to be.? ii. When you decide when you should offer the item into evidence now or later? 1. Why later? B/c opponent may challenge the authentication & this interrupts the story witness is telling. Might want to finish direct before offering into evidence. 2. Real evidence refers to tangible things related to the event in question. a. Except for writings, law of evidence does not require production. Existence and nature may be established through testimony. b. Generally all items will be admitted, although practical considerations may preclude admission (Size, odor, inflammatory) 3. Demonstrative Evidence this is tangible proof that makes a graphic point to be proved; its created for illustrative purposes only, but played no actual role in the event. Exhibit fairly and accurately depicts/represents the matter in question. Includes: photographs, diagrams, maps, models. b. Authentication i. Rule 901(a) - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 1. Aspects of Rule 901(a) a. Authentication is a condition precedent to admissibility b. It requires proving that the item is what the proponent claims it to be.


Ex: Issue is whether accepted offer in a breach of contract case. produces a letter that reads, I accept your offer. must allege & prove the letter is from the . proves this by showing signature is that of the .

c. Proof must meet the sufficient to support a finding standard. i. To satisfy the standard, the court must find that there is enough evidence to permit a reasonable person to conclude that the item is what the proponent claims it is.

2. Rule 901(b) gives a nonexclusive list of examples of how to authenticate. a. Testimony that a matter is what it is claimed to be. b. Nonexpert opinion on handwriting. c. Comparison by trier or expert witness with specimens which have been authenticated. d. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. e. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. f. Telephone conversations - evidence that a call was made to the # assigned at the time by the telephone company, showing who made the call. g. Evidence that a writing authorized by law to be recorded or filed, or was in fact done so. h. Evidence that a document or data compilation is in such condition as to create no suspicion concerning its authenticity, was in a place where it, if authentic, would likely be, and has been in existence 20 years or more at the time it is offered. i. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. j. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. ii. Specific Problems of Authentication 1. Authentication of Photographs - What constitutes adequate authentication depends on what counsel is offering the photo to prove. a. Distinguish: i. If a photo is being offered as demonstrative evidence, authentication can be accomplished by asking the witness if the photo is a fair & accurate representation of the actual location at the time of the event. It is demonstrative evidence to illustrate the witnesss testimony concerning the appearance of the location in question. Rule 901(b)(4). If a photo is being offered as real evidence, the witness needs personal knowledge to authenticate. This is b/c it is being offered to prove more than a fair & accurate depiction. It is being offered to prove that the photo itself is what it is alleged to be a photo of the location at the time of the event. Only the person who took the photo has personal knowledge of this. Rule 901(b)(1).


2. Authentication through Chain of Custody a. Determining when it is necessary to establish a chain of custody: i. ii. Unique one of a kind items usually easy to authenticate. You call a witness who identifies the item based on its unique appearance. No chain of custody is needed. But as to non-unique generic items, a witness cannot easily identify an item as the specific one found at the crime scene if it looks like many other copies (simple knife). 1. Two ways to authenticate in this situation: a. marking the item when it was recovered (which turns it into one of a kind); and b. laying a chain of custody. iii. Examples of Authentication Under Rule 901(b) Problems posed by New Technologies 1. United States v. Simpson was prosecuted for receiving child pornography. The govt offered a computer printout of the alleged internet chat room exchange between and an FBI agent. claimed the printout could not be authenticated (as having coming from him) b/c it did not consist of handwriting or audible vocalization, precluding the use of Rule 901(b)(2), (3) or (5). The court pointed out that the subsections of Rule 901(b) are merely illustrative and that, taken together, there were enough facts to satisfy the sufficient to support a finding standard of Rule 901. This flexibility in Rule 901 is important because new technologies will continue to present authentication problems not anticipated at the time Rule 901 was written. 2. United States v. Jackson convicted of attempting to defraud UPS by making a false claim that packages shipped to her were defaced with racist remarks. Pros claimed that, as part of the scheme to make it appear there were racists at UPS, attempted to send hate mail to prominent African Americans through UPS. denied doing any of this and claimed that the hate mail came from white supremacist groups. To prove this, she offered evidence of postings on the web sites of these groups, with postings that they took responsibility for the mailings. Court refused to admit evidence b/c it lacked authentication, b/c anyone (including Jackson) could post the comments. 3. NY - Electronic Data a. C.P.L.R. 4518 (a) i. An electronic record . . . used or stored as [a business record], shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record 1. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. 2. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. ii. Definition of Electronic Record - information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and

capable of being accurately reproduced in forms perceptible by human sensory capabilities. iv. Self-Authentication 1. Certain documents or things are said to be self-authenticating under Rule 902. This means that no secondary evidence (evidence other than from the mouth of the witness now testifying) is necessary to authenticate the item. Such items are authenticated based on what they look like or say on their face. a. The list in Rule 902 is exclusive. So if not included in 902, then must authenticate. i. ii. iii. iv. v. vi. vii. Domestic public documents under seal Domestic public documents not under seal if genuine signature of govt officer acting in official capacity. Foreign public documents, executed/attested in official capacity by person authorized under laws of a foreign country to do so. Certified copies of public records Official publications (books, etc.) Newspapers and periodicals Trade inscriptions like a bottle of a specific brand of soda. 1. Reason why self-authenticating b/c conventional authentication by a witness with knowledge that the specific bottle was manufactured by them is often impossible. viii. ix. x. xi. xii. Acknowledged documents (notarized, etc.) Commercial paper and related documents Anything declared by Act of Congress to be presumptively genuine/authentic Certified domestic records of regularly conducted activity Certified foreign records of regularly conducted activity

c. The Best Evidence Rule i. Rule 1002: To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided. 1. Rationale: The most reliable evidence of what is stated in a writing or other tangible collection of data is the original item itself. 2. When the Best Evidence rule applies a. This does not mean that only the best evidence if admissible to prove a fact in question. It only applies when evidence is offered to prove the contents of a writing, photo, tape, video, disk, or any collection of data in tangible form (things like a purse or briefcase is not subject to the rule). i. Whether something exists no best evidence necessary


What something said (its contents) best evidence necessary 1. Typically, the rule applies when an issue in the case turns on the contents of a legal instrument like a will, a contract, or a deed.

3. How the Best Evidence Rule is satisfied (if it applies) a. The content of a writing must be proved with the original. i. ii. A printout of computer data is considered an original under the definition (1001(3)) Note: There are other permissible ways to prove contents. 1. Rule 1003 permits duplicates a. Must be produced by a technique which accurately reproduces the original i.e., cannot be a handwritten copy; must be Xerox, etc. b. However, a duplicate is not admissible if a genuine question is raised as to the authenticity of the original. 2. Rule 1004 permits other evidence (like witness testimony), but only where all originals are lost or have been destroyed, unless the proponent has done so in bad faith. 3. Rule 1006 permits summaries of voluminous documents III.

a. Rule 201 - Judicial notice is a way to prove facts without offering evidence. To take judicial notice, it must be a fact that is capable of accurate determination by resort to sources whose accuracy cannot be questioned reasonably. i. ii. Court must give opportunity to challenge the taking of judicial notice for it to be appropriate. Facts capable of accurate determination by resort to sources whose accuracy cannot be questioned reasonably: 1. The day of the week a specific event fell on (determined by the date & a calendar) 2. Governmental records (like DMV records) 3. A breathalyzer result, if the breathalyzer is one that is commonly used & known to be accurate. 4. Not judicially noticeable: a. The judges personal awareness that something is true. iii. Rule 201(g). Instructing Jury. 1. In civil cases, the court shall instruct the jury to accept as conclusive any fact judicially noticed. 2. In criminal trials, a judge may instruct the jury that it may, but is not required to accept a judicially noticed fact as conclusive, b/c there is a constitutional right to a jury trial.

a. Rae v. State was charged with various traffic offenses, including driving with a revoked license. Relying on the records of the DMV, the court took judicial notice of the fact that s license had been revoked. The court then instructed the jury that this was conclusive proof and the jury must follow it. This is capable of accurate determination, but problem here is that its a crim trial, so cant require jury to accept proof as conclusive. b. Note: Although it might be irrational for jury to reject the noticed fact, Rule 201 forbids a jury instruction requiring jury to accept the proof as conclusive in a criminal case. iv. v. Rule 201(f) allows a court to take judicial notice at any stage of a proceeding, including on appeal. Distinguish between legislative facts and adjudicative facts Rule 201 governs only adjudicative fact. 1. 2. Adjudicative facts are simply the facts of a particular case (i e day of week; street case. i.e., location.) Legislative facts are those which have relevancy to legal reasoning and law making process. a. For example, a court deciding to recognize a parent-child privilege b/c it would encourage parent-child communication the fact that it would encourage parent-child communication is a legislative fact. b. Matters such as this are not indisputable, but courts and legislators must rely on them constantly when developing the law. IV.


a. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. i. ii. Only applies to writings, not oral statements/conversations. Based on two considerations: 1. Misleading impression created by taking matters out of context. 2. Inadequacy of repair work when delayed to a later time. 3. Does not prevent adverse party from developing the issue on cross-examination or as part of her own case.



a. Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. i. All relevant evidence is admissible, except as otherwise provided . . . . Evidence which is not relevant is not admissible. 1. Reason for excluding irrelevant evidence: a. Waste of time b. Might confuse the jury b/c they cant figure out what to pay attention to b. Rule 401: Definition of Relevant Evidence: i. Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The definition has two elements: 1. of consequence, and a. What is of consequence is a function of substantive law. i. Examples: 1. Under contract law, the secret, unspoken intent of the parties is irrelevant to formation. Therefore evidence of the secret intent is not relevant. 2. Negligence is not of consequence in a strict liability case. 2. more probable or less probable a. The test is whether the evidence affects probabilities (as opposed to how much it affects those probabilities) i. Ex: Testimony of witness who observed running away from crime scene minutes after it occurred this evidence makes guilt more probable. However, the evidence doesnt prove guilt beyond a reasonable doubt & would be insufficient to convict. Still, the evidence is relevant.


b. Examples: i. Testimony of a witness that she dreamed committed the murder in question does not make s guilt more or less probable, b/c our experience tells us dreams are not accurate reflections of reality.


State v. Jaeger convicted of murder in the shooting death of his girlfriend. He denied committing the shooting, claiming her death was a suicide. Wanted to offer evidence that when she was a young teen, she may have attempted suicide. 1. Evidence is relevant. a. Evidence offered to prove fact of consequence - whether death was suicide or homicide.

b. Evidence makes suicide more probable b/c it is reasonable to accept the validity of a generalization that a young teen who tries to commit suicide is somewhat more likely to try again some years later than is one who has never attempted suicide. 2. Probative Value - necessary to consider the strength of the generalization about suicide as applied to the facts at hand. a. Factors that might affect probative value here: i. ii. iii. Amount of time that passed btwn earlier suicide attempt & the alleged victims death The degree to which her personality had changed Her general emotional state in the days, weeks, and months before her death.

b. Probative value also varies depending on the amount of other evidence tending to show the same thing the evidence is offered to prove. iv. Chain of Inferences 1. Even if the testimony asserts exactly what it is offered to prove, one must infer at least four things about Witness and her statement in order to find the statement relevant: a. Witness observed the event accurately. b. Witness remembers the event accurately. c. Witness is testifying honestly. d. We understand correctly what Witness is communicating by her testimony. 2. After this, there are other inferences you might need to make to find a statement relevant. The inferences have to be rationale supported by acceptable generalizations. a. Example: i. In murder prosecution of for murder of victim, evidence that victim turned down for a date a week before victim was shot. 1. 2 inferences required to move from the evidence to the act, and must be able to articulate each stop in reasoning & each generalization supporting that step: a. The developed a motive to hurt victim following victims refusal to go on a date with i. Generalization: someone whose been turned down for a date is more likely to harbor ill-will than someone who hasnt

b. The acted on that motive i. v. That a person harboring ill-will towards another is more likely to harm the other than is someone who doesnt harbor such feelings.

Relevancy of Evidence depends on the purpose its being offered for 1. Example: Murder prosecution of . alleges self-defense. Evidence that a week prior, victim threatened s life; did not hear that threat. Relevancy would depend on whether

is offering evidence to prove that either victim attacked first, or that was justified in being the first attacker b/c he feared for his life. a. If offering to prove victim attacked first then its relevant b/c the threat makes it more probable that victim attacked first. b. If offering to prove he was justified then it is irrelevant b/c had not heard the threat to make him fear his life. i. vi. II. Note: If someone had told that victim threatened his life, then it would be relevant, even if its not true b/c its relevant in offering to prove s state of mind fear.

Background Evidence such as a witnesss name & address - Although it doesnt involve a dispute matter, it is universally offered and admitted as an aid to understanding.


a. Rule 403: Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of evidence.
i. What makes evidence unfairly prejudicial? 1. Note that all relevant evidence is prejudicial. It is offered to prove an element in issue. If evidence offered isnt prejudicial to adversarys position, then would not be probative of the issue in question. So, the question is not whether evidence is prejudicial. The question is whether the evidence is unfairly prejudicial. 2. Evidence is unfairly prejudicial it leads the jury to commit an inferential error by overweighing the evidence or confusing its meaning. a. Ex: gory photos may have an emotional impact way out of proportion to their logical import b. Ex: pros of for murder; victims body placed in a bag & thrown into lake, discovered 6 mos later. Pros wishes to offer the bag into evidence; the bag smells very bad. There is very little probative value of this (that the body was placed in a bag) & adds little to jurys understanding of the facts. But the bag & odor would substantially unfairly prejudice. i. In some situations, photos of the dead victim are highly probative. If the claims self-defense, then photo showing multiple wounds suggests aggressive behavior by & undercuts his self-defense claim. There is still a risk that the jury will overvalue the photos, but in this situation, it will be admitted b/c higher probative value. 3. Evidence is unfairly prejudicial if it distracts the jury from the real issue and induces them to decide the case on an improper basis a. Ex: evidence of s prior criminal record might lead the jury to convict the not b/c he committed the crime with which he is now charged but because the jury dislikes him. 4. Evidence is unfairly prejudicial if it is admissible for one purpose but not another and there is a danger the jury will use the evidence for the inadmissible purpose despite instructions to the contrary. Whats the difference between relevance and probative value? 1. Relevance is whether evidence has any tendency to affect the probability of the existence of a fact that is of consequence. Its either yes or no.



2. The probative value of evidence refers to the extent to which evidence affects that probability in terms of logic and need for the probability, evidence. Probative value can be measured along a spectrum from very low to very high (even determinative). a. Ex: Murder Pros, is Caucasian. Eyewitness testimony that perpetrator was of medium build logically has less probative value than eyewitness testimony that the was seen shooting the victim. The former affects the probabilities somewhat, but not much, since most people are of medium build. The latter directly connects defendant to the crime. Feaster v. United States charged with sex offenses associated with child abuse. He offered into evidence the grand jury testimony of a witness who denied observing any misconduct; witness could/would not testify at trial. Trial ct excluded the transcript of the witnesss statement for lack of credibility (& hearsay). appealed, claiming this denied him his right to present a defense under the 6th amend. App Ct said court erred when it excluded evidence for lack of credibility. Credibility determinations are usually for the jury, not the trial judge, to make. 1. Under Rule 403, the trial judge weighs probative value of testimony without respect to the judges conclusions about the reliability of the witness. The court should ask what the probative value of the evidence would be, assuming the jury finds the witness to be reliable/credible.

b. Undisputed Facts i. Evidence can still be relevant even if offered to prove an undisputed fact. Rule 401 does not make a distinction btwn disputed & undisputed facts, and allows evidence for such situations. 1. Justification a. By treating evidence that affects an undisputed fact as relevant, the Fed Rules leave this question to the trial court under the standard of Rule 403. b. Sometimes, even evidence offered to prove an undisputed fact can add a sort of story value to a case that makes the relevant evidence more coherent. c. Different from other relevance rules For example, CA evidence code defines relevant evidence as any evidence having a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination for the action. ii. However, if a party offers evidence to prove an undisputed point, its probative value in the context of the case is slight, and might well be substantially outweighed by the danger of unfair prejudice, or be needlessly cumulative, or be a waste of time. So, a court may exclude the evidence under Rule 403. 1. Ex: Negligence action following an intersection collision. admits negligence, but contests extent of s injuries. wishes to offer evidence that ran the red light, striking s car. is offering evidence to prove an uncontested fact. Even if the testimony of the witness would not consume much time, there might be a risk that the jury would be prejudiced against the defendant for the nature of the act, and that such prejudice would lead the jury to render a verdict larger than justified by s actual injuries. 2. Old Chief v. United States Pros for assault & for being a felon in possession of a firearm. To prove the possession crime, pros offered evidence that had previously been convicted of a felony (assault). offered to stipulate that had been convicted of a felony, but wanted to keep the nature of the crime from jury; court said no. SC reversed, holding that the stipulation should have been enforced & jury told only that was a felon in the generic sense. a. The evidence that was a felon is highly probative b/c its an essential element of one of the crimes charged; jury is entitled to hear was a felon. But the stipulation was enough; dont need the nature of the felony to prove that element. i. The evidence that it was an assault is unfairly prejudicial: 1. jury could infer he is a bad person since assault is worse than other felonies, 2. the prior conviction was for same type of crime charged here, so jury might improperly infer that b/c committed crime before, he committed the assault at issue here (b/c he did it before, more likely to do it again).


Although jury using evidence in this way is not illogical, Rule 404(a) limits the use of evidence in this way. In a criminal case evidence of a persons character or trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion (there are exceptions).

c. Dealing with Numbers i. Trials never prove anything with certainty. Evidence always is offered only to prove the probability of facts. Rule 401 defines relevant evidence as evidence that affects the probability of a fact of consequence. ii. Occasionally, evidence is offered in the form of quantified probabilities. This is especially common when an expert witness testifies. The use of evidence stated in such a form is now common in cases involving DNA testing, especially in criminal cases. The evidence can be powerful, but presents dangers. 1. Ex: Pros offers testimony that the 2 perpetrators of a bank robbery were a black man w/ shaved head, a beard & mustache, and a Caucasian woman with blonde hair & blue eyes. s have these characteristics. a. Calls mathematician to testify as an expert. Pros tells expert: Assume 1/10 men have a shaved head, men have a mustache, 1/10 have a beard, 1/3 women are blond 1/10 women have blue eyes, and 1/1000 couples are interracial. i. Probability: 1/10 x 1/4 x 1/10 x 1/3 x 1/10 x 1/1000 = 1/12,000,000. ii. This is the Product Rule Given a set of independent variables, the probability of finding them all present in one case is calculated by multiplying the individual probabilities. b. Problems: i. Where did the prosecutor get these numbers? Without a basis in the record supporting the probabilities the prosecutor used, he is acting more as a witness than as an advocate. ii. The product rule works only if the variables are independent. For example, many blonde also have blue eyes one variable correlates with another. iii. Adams v. Ameritech Services, Inc. - Action for age discrimination alleging employer used age to determine who would be laid off. s expert produced a report demonstrating that the % of workers over 40 who were terminated exceeded the % of Ameritech workers who were over 40. The report also showed that the % of older workers terminated exceeded the % of younger terminated workers. The court states, a spread of two standard deviations is normally enough to show that it is extremely unlikely (that is, there is less than a 5% probability) that the disparity is due to chance. The trial court excluded the report on the ground that, although clearly not due to chance, the report did not demonstrate that the different treatment in fact was attributable to age, as opposed to other variables. But appeals court reversed, holding that the evidence was relevant because it ruled out chance, even though the evidence says nothing about whether the different treatment was caused by variables other than age. Those other variables could be ruled out by other evidence.




a. The focus is not on a rule of admissibility of a particular type of evidence, but on how all the admissibility rules are applied. Many rules make admissibility turn on the existence of a fact or facts.

b. WHETHER A FACT ESSENTIAL TO THE ADMISSIBILITY OF AN ITEM OF EVIDENCE EXISTS IS CALLED A PRELIMINARY QUESTION OF FACT. RULE 104 TELLS US HOW THESE PRELIMINARY QUESTIONS ARE TO BE DECIDED. i. 104 (a) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of privilege, evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. 1. Burden is by a preponderance of the evidence. ii. 104 (b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. 1. Condition of fact: Ex homicide case, pros want to bring in evidence that machete found in s garage. The relevance depends on whether the victim was hacked to death by a machete or not. Here, jury can make that finding of fact, b/c if victim was not hacked to death by a machete, we can expect juries to use common sense & not use that evidence. For more complicated rules, though, we do not trust juries. 2. To determine whether there is sufficient evidence to meet Rule 104(b), the court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact to be true by a preponderance of the evidence. a. Huddleston v. United States - The Supreme Court applied Rule 104 (b) to the admissibility of uncharged crimes under Rule 404(b). Issue was s knowledge concerning selling stolen property. Admissibility turned on whether there was proof that had committed the uncharged crimes. Trial judge need only decide that the jury could find by a preponderance of the evidence that the committed the other crimes. The jury must actually be persuaded by a preponderance of the evidence. If the jury makes such a finding, they can use other-crime-evidence as circumstantial evidence of some relevant aspect of current prosecution. c. Rationale: Note that both subdivisions contemplate that the court plays a part in deciding whether a fact crucial to admissibility exists. i. Since the jury is the so-called trier-of-fact, why not turn all these issues over to the jury? The reason is that there is a conflict between enforcing the evidence rules (which turn on the proof of preliminary facts) and the jurys job of reaching a verdict in the case. 1. For example, assume that in a murder case the prosecution offers the hearsay statement, Joe () shot Kenny! Under Rule 803(2), the evidence is admissible only if the speaker was excited at the time he made the statement. a. If we turned over to the jury the job of deciding the preliminary question of fact, we would require that if they found its not an excited utterance, then they would have to disregard that piece of evidence. We are afraid that even if jury does not find the facts necessary for admissibility, they would still pay attention to evidence b/c theyre simply unable to ignore it. d. Rule 104(c) provides that hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. i. Ex: Pros for murder. Pros wishes to present evidence of a written confession signed by . admits signing the confession, but claims she only did so after the police threatened to investigate her entire family for any possible wrongdoing. is entitled to a decision as to the voluntariness of her confession. Under Rule 104(c), this decision must be made by the judge. Even w/o rule 104(c), same result b/c confession is likely relevant even if not voluntary. ii. Harris v. New York s confession had been suppressed for failure to advise Miranda Warnings. Trial testimony at odds with confession, pros permitted to impeach with confession. Should be able to use s preliminary hearing testimony for impeachment purposes. But if confession is actually coerced, cant use for impeachment purposes. e. More Examples:





104(a) - Judge decides preliminary question of fact; standard is by preponderance of the evidence 1. Pros of for pick-pocketing. To prove committed the crime, the pros calls Witness, who was walking with the victim when the act occurred. If permitted, Witness will testify that just after reached into the victims back pocket and removed his wallet, Witness said to the victim, Someone just stole your wallet. Hearsay, and admissible only if Witnesss statement described or explained the event while she was perceiving it or immediately after she perceived it. a. Preliminary fact: That statement was made while or immediately after perceiving the event b. Because the statement itself will still be relevant even if that fact is not true, it is not a case of conditional relevancy. It is excluded b/c its hearsay but jury may still take it into account. 104(b) Jury decides preliminary question of fact; standard is sufficient to support a finding 1. Breach of oral K case re: sale of car. wishes to testify that phoned , offered to buy s car, and that accepted the offer. claims she never had this phone conversation with , and objects to s testimony concerning that conversation. a. Preliminary fact: whether the phone conversation to which testified occurred with b. This is a case of condition relevancy If convo did not occur w/ , evidence of its content would be irrelevant & jury can easily disregard it. If did speak with , the convo is relevant & jury would have heard it anyway. 2. Negligence action following a car accident. had a passenger in the car. wishes to testify that after the collision, walked over to s car, knocked on the window, asked what happened, and that a voice answered, I dont know what happened. I fell asleep before the accident. If was speaker, admissible hearsay; if passenger was speaker, inadmissible hearsay. a. Preliminary Fact: Identity of the speaker. b. Conditional relevancy - If was not the speaker, it is irrelevant even though the hearsay rule would exclude it; jury can easily ignore this. No concern that they will use inadmissible hearsay. If driver is speaker, admissible hearsay & jury would hear it anyway. i. However, if the speaker said: I dont know what happened, the windshield was all fogged up, it would be relevant no matter who said it, so even if passenger said it & it would be impermissible hearsay, the jury might still use this evidence. Personal Knowledge - Rule 602 1. Burden of persuasion for preliminary determination of personal knowledge is sufficient to support a finding, which is lower than even preponderance of the evidence. Thus, perceptions can be limited or flawed without disqualifying the witness. 2. A determination of personal knowledge is made under Rule 104 (b), thus preserving for the jury its essential role of deciding what weight to give testimony. Rule 901(a) - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 1. Aspects of Rule 901(a) a. Authentication is a condition precedent to admissibility. b. It requires proving that the item is what the proponent claims it to be. c. Proof must meet the sufficient to support a finding standard. i. To satisfy the standard, the court must find that there is enough evidence to permit a reasonable person to conclude that the item is what the proponent claims it is.



Rule 901 is an analogue to Rule 602. They both set minimum standards for determining what evidence is worth hearing. 1. Rule 901(b) gives a nonexclusive list of examples of how to authenticate. 2. U.S. v. Sliker - Admission into evidence of a tape recording of a telephone conversation. Issue of authenticity. Rule 901 (a) requires evidence sufficient to support a finding that the matter in question is what its proponent claims. Judges admission of the evidence under Rule 104(b) is conditional and subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition. Determination of the foundation for admissibility of coconspirator statements (rule 801(d) (2)(E)) is governed by Rule 104(a). 1. U.S. v. Tracy - The question whether declarant was part of a conspiracy and whether the statements were made in the course of and in furtherance of the conspiracy were for the judge alone. The burden of persuasion was by a preponderance of the evidence. So, if, by the preponderance of the evidence, the judge decides that the statements were made in furtherance of a conspiracy, then the statement are allowed to go to the jury. Other Rule 104 (a) Issues 1. Whether evidence is inadmissible on a public policy ground. 2. Whether evidence is inadmissible hearsay. 3. Admissibility of confession. 4. Qualifications of expert witness. a. Note: Evaluating witness credibility and weight of the evidence is for the jury (rule 104(b)).




INTRODUCTION TO HEARSAY a. Rule 801: Definitions

i. Hearsay. Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted. 1. A statement is an oral or written assertion or (2) non-verbal conduct of a person, if it is intended by the person as an assertion. 2. A declarant is a person who makes a statement.

b. Rule 802: Hearsay is not admissible except as [otherwise] provided. i. Rationale: 1. We need to test the reliability of statements made by cross-examination, and by jury observing the witnesss demeanor for credibility. Also, an in-court witness must take an oath or give an affirmation to tell the truth. The threat of a perjury prosecution presumably eliminates some lying. When a persons out of court statement is offered into evidence, these safeguards usually cannot operate. 2. When witness and declarant are same person, statement is still hearsay. This is b/c of the need for contemporaneous cross-examination. ii. Proving the facts of the declarants out-of-court statement 1. Allowing out-of-court statements to prove the facts described in the statement is the problem & why we dont allow hearsay. However, the danger that the declarant is lying or mistaken does not present a problem if we are not offering the statement to prove a fact in declarants statement.




2. Fact of Consequence: If offered to prove something else, such as the fact that the statement was made, then no such problem. The mere making of the statement is a fact of consequence, & not hearsay. How to determine whether a statement is hearsay: 1. Is there an out-of-court statement? 2. Why is the jury being given this evidence? What is it going to prove? 3. If the declarant was lying or mistaken, would the jury be misled? Would it be receiving unreliable evidence? 4. If so, it is hearsay. If not, it is not hearsay. Probative Value & Hearsay Cannot admit inadmissible hearsay just b/c of high probative value. No discretion by the court to admit such evidence. 1. However, some believe we should allow courts to admit hearsay when its probative value is high and the dangers associated with hearsay are low. Rule 807, the residual exception partially codifies the discretionary approach. Hearsay Within Hearsay 1. When evidence consists of multiple levels of out of court statements, the evidence is not admissible unless each level can survive a hearsay objection. This means that each level either must be within an exception to the hearsay rule or must not be hearsay.


THE DEFINITION OF HEARSAY - a statement, other than one made by the declarant while testifying
at trial or hearing, offered to prove the truth of the matter asserted. a. Statement i. A statement is an assertion, thus, it intends to communicate facts or data. 1. Usually this is done in form of a declarative statement, as in Joe shot the victim. It also can be done in a question, as in Why did Joe shoot the victim? This can be done orally, as in a conversation, or in writing, as in a letter or a billing invoice. 2. Even conduct can be an assertion if it is intended to communicate facts or data. a. Acts that are intended by the maker as expressive communications. People v. Salko. i. Ex: Officer testifying that witness pointed to in a lineup, when asked who committed the crime. The eyewitnesss conduct is a statement it was an assertion that the was the one who committed the crime. See also U.S. v. Caro. b. Non-assertive conduct, that is, conduct not indulged in to assert some fact is circumstantial evidence and its admissibility judged on that basis. i. Ex: To prove that the surf was up at a particular beach, evidence offered that hordes of surfers headed for that beach. This is not a statement b/c their conduct was not intended as an assertion they didnt head to the beach to assert the surf was up, but rather headed to the beach b/c the surf was up. b. Declarant i. Only a person can be a declarant. 1. This means that animals and machines cannot create hearsay. a. Ex: To prove committed the crime, evidence offered that dog trained to track a scent followed a trail from the crime scene and pointed to . Declarant must be a person. c. Other than one made while testifying at the trial or hearing i. When testifying in court, the assertions a witness makes then and there are not hearsay. This is b/c the witness is subject to cross-examination concerning the facts she asserts. But we are dealing with a statement other than while testifying at the trial or hearing 1. when a witness repeats what someone else said out of court, 2. when counsel offers a document someone wrote out of court, 3. or even when an in-court witness tells us what she, herself, said or wrote out of court. ii. Examples: 1. Must be made while testifying. During a murder trial, a spectator stands up and yells, is a murderer. Although the statement was made in court, it was not made while testifying.

2. A deposition is not a trial or hearing. At a trial, a party wishes to offer in evidence a statement made by a person in a deposition. Since the statement was not made at the trial or hearing at which it is offered, it is an out-of-court statement for purposes of the hearsay rule. Although there was opportunity for cross at deposition, the problem is lack of an opportunity to observe the declarant at the time she makes the statement, in order to evaluate credibility. 3. Testimony must be at the same trial or hearing. Witness testifies at first trial that assailant had blonde hair; that trial results in a hung jury. Witness dies. Pros wants to testify that witness said assailant had blonde hair. The witnesss testimony was not given at this trial or hearing. d. Offered to prove the truth of the matter asserted i. Distinguish between credibility of witness and reliability of the declarant 1. When the statement is not offered to prove the truth of the matter asserted, it is the witnesss credibility, and not that of the declarant, that matters in most cases. a. If not offered in evidence to prove the truth of what it asserts, the inability to crossexamine the declarant at the time she made the statement normally will not significantly disadvantage the opponent. Its more important to cross-examine the witness relating the out-of-court statement to determine whether she heard the statement correctly, remembers it accurately, has reason to be dishonest about it, and understood its meaning. ii. Examples: 1. Pros of for assault & battery on Victim. claims self-defense. To prove that Victim attacked first, evidence is offered that the day before the altercation, Victim said, I want to kill . The assertion by victim is offered to prove that victim intended to kill , which makes it more likely that victim attacked first. a. However, if admits he attacked victim first, but only b/c he feared victim would kill him, the victims statement if not offered to prove that victim intended to kill , but only that victim said it, and it had an effect on that became fearful. 2. In personal injury case, witness testifies that the light was green. To prove the light was red, offers evidence that at the scene of the accident, witness said the light was red. The statement is being offered to prove that the light was red & so offered for truth of matter asserted. a. However, if the witnesss prior statement that the light was red was proving offered to impeach the witness by showing she is inconsistent & unreliable, its not offered to prove the truth that the light was red, but that she said something diff than at trial. 3. To prove that a witness is insane (and not credible), evidence is offered that she said I am Elvis. Not being offered to prove the truth that she is Elvis, but only that she said it. a. However, if witness said, I believe I am Elvis, then b/c trying to say shes insane, youre offering it to prove the truth that witness believes she is Elvis. III.


a. It is important to be able to recognize when Rule 602 or Rule 802 is the proper basis for an objection, b/c under Rule 103, it is necessary to state the specific ground for an objection. b. Distinguishing between hearsay and personal knowledge objections is determined by the form of the testimony. i. Hearsay Objection - If the witness quotes or paraphrases an out-of-court statement, the objection is hearsay. 1. Auto accident; to prove had defective brakes, calls a witness who offers to testify that on the day before the accident, she heard an auto mechanic tell , I just took a look at your brakes. They are shot. Witness is quoting what mechanic said & attributes it him. ii. Personal Knowledge Objection - If the witness does not quote or paraphrase, but simply relies on another persons perception as described in an out-of-court statement, the proper objection is lack of personal knowledge.

1. Auto accident; to prove had defective brakes, calls a witness who offers to testify that s brakes were shot. Witness is relying on what she heard mechanic say. Hearsay is not a proper objection b/c witness does not purport to quote or paraphrase an out of court statement. Lack of personal knowledge objection is appropriate b/c witness did not perceive this with her senses. IV.

UTTERANCES & CONDUCT THAT ARE NOT HEARSAY a. Words of Independent Legal Significance or Verbal Acts
i. Sometimes, the mere fact that words were uttered has legal consequences b/c of the substantive law. Thus, when a witness testifies in court that she heard these statements made, the evidence is not hearsay because it is not offered to prove truth of matter asserted. Rather, the testimony is offered only to prove that the statements were made. 1. The making of the statement is a legally consequential act & not merely evidence of some fact. a. Examples are the words I accept in a contract case, you have the right to remain silent in a criminal case, and thats my land in an adverse possession case. 2. Words of Independent Legal Significance a. Breach of contract. claims there was no contract. To prove a contract existed, offers evidence that after receiving s offer said, I accept your offer. This is not hearsay b/c s utterance constituted words of independent legal significance. The words are not evidence of accepting an offer; the acceptance is the offer. i. However, if statement was I accepted your offer last week, this is hearsay. The statement is not the act of acceptance it is an assertion that accepted the offer previously. b. Libel suit against newspaper for publishing an article falsely stating that was a child molester. offers the newspaper article to prove libel. Not hearsay. The article itself is the libel & constitutes words of independent legal significance; not offered to prove the truth of it, only that it was said. i. However, if in order to prove the libel offered a statement that the newspaper called a child molester, then this is hearsay. Its being offered to prove that the newspaper did that. c. claims he acquired prop through adverse possession. offers evidence that for years, he posted signs on prop Property of ! Stay off! This is not hearsay b/c the words have an independent legal significance one of the elements to adverse possession. 3. Verbal Acts a. To prove that a corporate board of directors approved a certain resolution, evidence is offered that when the chairperson asked all in favor to say aye, a majority of directors did so. Not hearsay b/c saying aye is the act of voting which is a verbal act. b. To prove owned a certain bracelet, she testifies that her grandmother, the prior owner, gave her the bracelet while stating, Here is your birthday present. This is not hearsay. The statement by grandma was a manifestation of her donative intent it was part of the act of making the gift.

b. When the Value of the Evidence Derives from the Fact that Words Were Spoken i. Where the mere making of a statement is important not because of what is said but merely because words were spoken, the truthfulness of the statement is not the issue. Rather, only the reliability of the person who describes the making of the statement is at issue. 1. Examples: a. To prove that Deceased was alive at a certain moment, evidence is offered that at that moment, Deceased told a police officer, I havent kicked the bucket yet. Not hearsay b/c all that matters is that deceased spoke that he said the words. Doesnt matter what he said.


However, if evidence offered is of the widow testifying that the police told her deceased just said hes alive, then that statement is hearsay. It being offered to prove the truth of it that deceased said something & was thus was alive at that moment. b. To prove that Zed spoke Spanish, evidence offered that the witness overheard Zed say to a Spanish-speaking, Hablo espaol. This is not hearsay the statement is not being offered to prove the contents of what Zed said, but that he actually spoke in Spanish. Where the Words Are Being Offered to Show Their Effect on the Listener 1. Examples: a. In a negligence case, giving notice of a dangerous condition can lead to a finding that the listener assumed the risk by proceeding after hearing the notice. b. In a murder prosecution, evidence that the listener heard the victim utter a threat may put the listener in the state of mind necessary to establish a claim of self-defense.


c. Circumstantial Evidence of State of Mind i. If declarant makes a direct statement concerning what is on her mind, and we are offering that statement to prove that the statement is true, then it is hearsay. However, if the statement is not a direct assertion about the speakers state of mind, but only circumstantial evidence of that state of mind, it might not be hearsay. 1. Examples: a. Will contest. To prove testator/declarant hated Joe, evidence offered that testator said I hate Joe this is hearsay being offered to prove the truth of it. But if testator had said Joe is a thief!, then not hearsay b/c its circumstantial evidence of the state of mind the fact that it was said shows declarants state of mind. Not being offered to prove the fact that it asserts (that Joe is a thief; offered to show testator hated Joe). b. Action for interference with contract. alleges enticed customer to switch its business from to by falsely suggesting was going into bankruptcy. To prove this, wants to testify that customer said Im switching b/c your future is uncertain. Not hearsay. Not being offered to prove the truth that s future is uncertain, but only that customer believed it to be true. That belief makes it more likely that told customer going into bankruptcy. i. However, if customer said Im afraid you will be going bankrupt soon and wont be able to fill our orders. Then statement is hearsay b/c offered to prove the truth of what it asserts that customer is afraid. Statement asserts customers state of mind, and thats what is being proven. 2. However, consider: a. Shepard v. United States was convicted of murdering his wife by poison. As she was dying, she said Dr. Shepard has poisoned me. Pros introduced the statement into evidence. The govt argued that the statement constituted circumstantial evidence that Mrs. Shepard was not suicidal (b/c someone suicidal not likely to make such an accusation), which would undercut s suicide defense & make it more likely she was murdered. But the statement was still inadmissible hearsay. The probative value of the evidence on the issue of Mrs. Shepards will to live is substantially outweighed by the danger of unfair prejudice (and perhaps confusion) caused by the very logical use of the evidence to prove the truth of the matter assertedthat Dr. Shepard poisoned her. ii. Another example is where an out of court statement is offered to show only that the speaker had knowledge of the facts described, not that the facts were true. 1. This should only work in cases where the knowledge is very detailed, to the degree that it would be virtually impossible for the declarant to make up or guess the details, and where there is little chance that the declarant could have obtained the knowledge in some other way. a. Ex: Murder pros. To prove Zed committed the murder, and not himself, offers evidence that Zed described the murder scene exactly as it was & the murder scene was very unique. The statement is not hearsay b/c its not being offered to prove what the

scene looked like, but rather that Zed knew what it looked like, and therefore could have been the perpetrator. 2. But Caution: In most situations the speakers knowledge of a fact is not in itself relevant. a. Ex: witness at the scene of an auto accident states that the blue car ran the red light. The statement would it be admissible to prove only that the declarant knew that the blue car ran the light (nor to prove it was a red light b/c would be hearsay). i. Otherwise, the hearsay rule would be reduced to a virtual nullity b/c the argument almost always can be made that a statement is offered only to prove the declarants knowledge of or belief in a fact. ii. This type of knowledge theory for classifying a statement as non-hearsay is only available in unusual circumstances as described above. d. Words or Conduct that are not assertive or are assertive of something other than

what they are offered to prove

i. Just like verbal or written statements, conduct also can be circumstantial evidence of the actors state of mind. 1. Examples: a. Ship lost at sea, owners trying to insurance proceeds. Insurers alleged that the ship was lost b/c the ship was not safe when it left port, which isnt covered. Owners offered evidence that before the ship left port, the captain went on to the ship, thoroughly inspected it, and only then boarded his family and cast off. This is not hearsay b/c the captains conduct was non-assertive, so there is little danger he was trying to mislead anyone. The danger of insincerity is not significant b/c a person is less likely to lie indirectly than directly. Plus, if captain believed ship was unsafe, his conduct in boarding his family would have been suicidal. His conduct was circumstantial evidence of his state of mind. b. To prove a hurricane was expected to hit the town, evidence is offered that the citizens boarded up their homes and businesses. Not hearsay b/c not asserting the fact its being offered to prove that a hurricane was coming. c. To prove a person had a contagious disease, evidence is offered that her doctor placed her in an isolation room. The doctor did not do this for the purpose of asserting that the patient was contagious, but to protect others from the patient. d. Pros of for robbing the River City Bank. To prove Zed, rather than , robbed the bank, Defendant offers evidence that shortly after the robbery, Zed was seen carrying bags of money. Not hearsay b/c Zed was not carrying bags of money to assert he had robbed the bank.



i. Just because evidence falls within the definition of Rule 801(c) does not necessarily make it hearsay. Rule 801(d) creates exemptions to the general definition of hearsay. 1. Statements which are not hearsay: a. Prior statements by a witness. [Rule 801 (d) (1)] i. Prior Inconsistent Statements ii. Prior Consistent Statements iii. One of identification of a person made after perceiving the person. b. Admission by party-opponent. [Rule 801 (d) (2)] Rationale: The evidence should be considered non-hearsay, not b/c it is especially reliable or needed, but b/c we can expect the adversary process sufficiently to expose any reliability problems and, thus, the trier-of-fact can be trusted to give the evidence its proper weight.


b. Party Admissions: Rule 801(d)(2) i. SIMPLE PARTY ADMISSIONS: RULE 801(d)(2)(A) 1. Definition has two parts:


a. it must be a statement by a party; and b. it must be offered by the opponent. i. There is no requirement that a party admission be against interest. The party need not admit to damaging facts. 2. Rationale: If a statement by a person is admitted against that same person, he cant very well claim prejudice by being unable to cross-examine the declarant. He can simply take stand and explain his statements. 3. Examples: a. Auto accident; negligence action. claims to remember no details about the accident. At trial, wants to testify that a week after collision, told I fell asleep just before the accident. This is a party admission & is not hearsay. Statement made by a party, , and offered by the opponent, . b. It is not required that the declarant have personal knowledge of the facts forming the basis of their statements. i. Thus, if also wants to testify that said I crossed the center line just after I fell asleep, need not have had personal knowledge of this. ii. Rationale for not requiring personal knowledge: 1. because the statement will be that of a party; 2. because the party is present to deny making the statement or explain its meaning; and 3. because the party has every incentive to deny or explain, courts assume that the adversary system will take care of any fact-finding distortions caused by admission of the statement. c. Statement must be offered by the opponent. i. told Maybe someone slipped something into my coke, b/c I certainly had no warning that I might fall asleep. wants to offer this statement. Since its being offered by the party what said it, not a party admission. 1. Note: Completeness doctrine applies only to written statements. 2. Also, since not a party admission, there is a personal knowledge problem here. The statement is pure speculation. ADOPTIVE ADMISSIONS: RULE 801(d)(2)(B) - a statement that is offered against the party that made the statement, and where the party has manifested an adoption or belief in its truth 1. Note: for the statement to be admissible: a. the party must have heard the witnesss statement; b. the party must have understood the statement; c. this is a situation in which one would expect an innocent person to deny the accusations truth; and d. the partys conduct did not constitute a denial. 2. Sometimes even silence can be the basis for an adoptive admission. The court must evaluate circumstances in light of what we assume about normal human behavior. For example, someone says, in s presence, shot the victim. then nods his head in apparent agreement. If it would have been normal for to deny an accusation made in his presence, his silence may be deemed acquiescence and, thus, an admission. a. State v. Carlson Pros for drug possession. Pros offered testimony that when police asked about track marks on his arms, he said that the marks were injuries that he had received from working on a car. His wife broke in and yelled, You liar, you got them from shooting up. then hung his head and shook his head back and forth. claimed that the shaking of his head manifested his rejection of the wifes statement, not its acceptance. i. Note: Determining what the headshaking meant is a 104(a), not (b) analysis. If it were left to the jury, it would be prejudicial. Even if jury decided the headshaking meant he


denied what wife said, jury cant ignore what wife said. Standard is preponderance of the evidence or more likely than not. b. Sometimes, what we consider a normal reaction is not always so. i. Ex: Pros of , a gang member, for murder of victim, a member of a rival gang. denies involvement. To prove killed Victim, the pros calls Witness, a member of Victims gang, to testify that shortly after the killing, he approached in a bar and said, You son of a bitch! You killed my friend! and that just stared at him and smirked. In this situation, it is uncertain what meant by staring & smirking. Although a normal reaction would be to deny it, a gang member in the setting might very well not, even if innocent. Further, if was surrounded by members of his own gang, theres very little incentive for him to deny it. c. If someone has just been read Miranda rights, silence is probably not an adoptive admission. i. Ex: Pros for bank robbery. After being read Miranda rights, a bank teller approaches and said, You pointed a gun at me. does not respond. It would be unreasonable to conclude silence is admission, since he was just told that he may remain silent. Also, allowing pros to use his silence against himself would violate his constitutional rights. VICARIOUS ADMISSIONS: AUTHORIZED AND AGENCY ADMISSIONS 1. RULE 801(d)(2)(C): AUTHORIZED ADMISSIONS a statement that is offered against the party that made the statement, and made by a person authorized by the party to make a statement concerning the subject a. This is often used in cases where a party is a corporation or other legal entity. Because these are not natural persons, they never speak for themselves; they can only speak through agents. Of course, the exception can apply to any situation in which a person, even a natural person, speaks through another. i. Ex: breached K with ; K was for to star in s musical. says he couldnt perform b/c he broke both legs in a ski accident 2 weeks prior to start date. To prove was physically fit to perform, calls witness, a reporter, to testify that shortly after alleged skiing accident, s publicist told her that was feeling fine & looked forward to his planned mountain climbing expedition schedule the following week. If the publicist had authority to speak (most likely yes), then this is an authorized admission & not hearsay. b. The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority. Thus, the declarants own statement that, I am authorized to tell you, is by itself insufficient to establish an authorized admission. 2. RULE 801(d)(2)(D): AGENCY ADMISSIONS a statement offered against the party that made the statement, and made by any agent or employee, even if she was not specifically authorized to be a spokesperson. a. 3 elements to a qualifying a statement under this section: i. the speaker must be an agent or employee of a party; ii. the statement must relate to a matter within scope of agency or employment; and iii. the statement must have been made during the relationship. b. Examples: i. The agent need not have been authorized to speak for the market, as long as he was an agent, still falls under 801(d)(2)(d). 1. sues market for slip & fall injuries, alleging there was a puddle. denies there was a puddle. To prove puddle existed, wants to testify that the manager told , Sorry for not cleaning up the puddle. says manager had no authority to make that statement. The manager is an agent (employee), it was made within scope of employment, and manager was at the time working for market. Doesnt matter that he had no authority.

2. The statement must be offered by the opponent. a. Thus, if on cross of , wishes to ask whether mgr also told that he should be careful b/c was carrying too many bags, this statement would not be an agency admission, b/c not offered by , the opponent. ii. Statement must be within the scope of employment. 1. Delivery truck operated by business collided with . Truck driver, s employee, told , My company will pay your damages. This statement is not an agency admission b/c it was not made within the scope of the drivers employment. The scope of his job is to drive the truck, not determine the companys liability. 3. Preliminary Facts for both of these types of admissions should be decided using Rule 104(a). The reason is that a persons statement concerning a matter at issue is relevant whether or not the person is authorized to speak for the party. The court must decide the existence of authority to speak, applying the more likely than not standard. iv. CO-CONSPIRATOR STATEMENTS: RULE 801(d)(2)(E) - a statement that is offered against the party that made the statement, and made by a coconspirator of a party during the course and in furtherance of the conspiracy. 1. The four elements of Rule 801(d)(2)(E) are preliminary facts to be decided under Rule 104(a).: a. a conspiracy, b. declarant is member, c. the statement was made during existence of the conspiracy, d. the statement was made in furtherance of the conspiracy. 2. Whether a statement was made during existence of a conspiracy is determined by substantive law. a. Ex: on trial for murder & conspiracy to commit murder. To prove supplied poison to kill the victim, evidence offered that a few months prior to killing, Zed told , If you can get the poison, Ill take care of the delivery. This would fall under 801(d)(2)(E) if at the point the statement was made a conspiracy existed, but this depends on the substantive law. i. The statement made by an alleged co-conspirator may be considered, but is not sufficient in itself, to establish the existence of a conspiracy. Thus, if the only evidence of the conspiracy was that one statement above, then this is insufficient to establish there was a conspiracy. ii. A co-conspirator statement need not be offered only when conspiracy is charged. Thus, the could only be charged with murder, and if it can be established that there was a conspiracy (using rule 104(a)), then admissibility will not be affected (& not hearsay). 3. The statement must have been made in furtherance of the conspiracy. a. Ex: Zed & arrested for poisoning victim with arsenic. On the way to the police station, Zed says to , We should have picked something less detectable in the body. This statement is not in furtherance of the conspiracy. However, it may be offered against Zed, who said it, under 801(d)(2)(A) (simple party admission partys own statement). c. Prior Statements of Witnesses: Rule 801(d)(1) i. Introduction 1. There are two key points. a. First, a statement can still be hearsay even if it is the prior statement of a person testifying as a witness. b. Second, even if a statement is offered to prove the truth of the matters asserted, it is not hearsay if it falls within any of the subdivisions of Rule 801(d).




2. Under Rule 801(d)(1), three types of prior statements by a witness are not hearsay. For any part of that provision to apply, the witness/declarant must testify at the trial and be subject to cross-examination. RULE 801(d)(1)(A): PRIOR INCONSISTENT STATEMENT - a statement inconsistent with the witnesss trial testimony and was given under oath at a trial, hearing, or deposition. 1. The witness/declarant must testify at the trial and be subject to cross-examination. 2. Often used to impeach a witness. 3. An inconsistent statement given at an accident or crime scene is not admissible under this rule because such statements are not given under oath. 4. Rule 801(d)(1)(A) only applies where the statement is offered to prove the truth of the facts asserted. An inconsistent statement offered only to impeach is not hearsay under 801(c) because such a statement is offered only to show it was made, not that the facts in it are true. RULE 801(d)(1)(B): PRIOR CONSISTENT STATEMENT 1. The witness/declarant must testify at the trial and be subject to cross-examination. 2. The provision makes prior consistent statements of a witness not hearsay if a. the declarant testifies at trial, b. is subject to cross-examination, c. the statement is consistent with her testimony, and d. the statement is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. i. Prior consistent statements cannot be offered just for the limited purpose of supporting witness credibility. It is highly unlikely that a juror can cognitively separate using the statement for this limited purpose from using the evidence to prove the truth of the facts asserted in it. ii. Therefore, this fourth element requires that the credibility of the witness must first be attacked in one of the ways described. If no such attack has occurred, the consistent statements are inadmissible. 3. Note: NY law is different a. The testimony of a witness may not be corroborated or bolstered by evidence of prior consistent statements made before trial, when offered to prove the truth of the matter asserted are hearsay under NY law. i. But, it may be admissible to rehabilitate credibility of witness, when testimony has been impeached as a recent fabrication using the prior consistent statement to rebut a charge of recent fabrication is to lend credibility to testimony of witness. RULE 801(d)(1)(C): STATEMENTS OF PRIOR IDENTIFICATION 1. Elements: a. the witness/declarant testifies at the trial or hearing; b. she is subject to cross-examination concerning the statement; and c. the statement identified a person after the witness/declarant perceived that person. 2. Examples: a. Witness is not required to be under oath when the statement was made. i. Ex: Pros for bank robbery. Eyewitness is asked if she recognizes the robber in the courtroom. The witness identifies the . On cross-examination, defense counsel establishes that after the robbery the witness went to the police station to view a lineup, pointed at someone who was not the , and said, Thats the robber. This would not be admissible under 801(d)(1)(A) (prior inconsistent statement), b/c it was not made at trial, hearing or deposition (while under oath). But under 801(d)(1)(C), it is admissible, b/c not required to be under oath when she made the statement. b. It does not matter if the statement was introduced by a witness other than the one who made the statement, as long as the witness/declarant is at trial/hearing, she is still subject to cross concerning that statement.

Ex: Witness IDs in police lineup. Witness testifies at trial, but Pros, on direct does not ask about the lineup. Then police officer, present at lineup, testifies that witness IDd the . c. The witness testifying about a statement of prior identification need not have personal knowledge about the accuracy of the identification, but only of the statement of identification itself. Thus, a police officer present at a lineup can testify to who a witness IDd as the perp. d. Perception includes looking at a photograph. So, a witness/declarant could have IDd the perp by looking at photos. e. It is not required that the ID be made in a formal procedure. Thus, witness IDing the perp at the police station (not in a lineup) is also included. f. Describing the perp is not the same as IDing him. Thus, a description by witness that matches what actually looks like is not an identification. 3. Note: NY law is different a. You may use the prior identification to bolster the witness/declarants in-court ID, but someone else cannot use the prior ID without actual witness/declarant present at trial. i. People v. Mobley - Error to allow a police witness to testify that the victim of a robbery pointed at s shortly after the robbery, when victim had already made incourt identification. Had she testified as to her own prior ID that would have been permissible. ii. However, if witness IDs at time of crim, then affirms ID later, but unable to make an in-court ID, another person who made the earlier ID may testify to it. VI.


EXCEPTIONS TO THE HEARSAY RULE a. Introduction - Not all hearsay is inadmissible.

i. ii. Rationale - The rationale for most exceptions is either that the hearsay is reliable enough to admit or that there is a need for the evidence. Sometimes a hearsay exception is supported by a combination of both rationales. The exceptions are contained in three rules: 803, 804, and 807. 1. Exceptions in Rule 804 require the declarant to be unavailable to testify, while the exceptions in 803 do not require unavailability. 2. Rule 807 is the so-called catchall or residual exception

b. Rule 803: Exceptions to Hearsay where Availability of Declarant is Immaterial 1. RULE 803(1): PRESENT SENSE IMPRESSIONS a. Rationale: Hearsay of this type is reliable enough to admit because, if a statement is made close in time to the events being described, it is less likely that the declarant will suffer a failure of memory. b. Elements: i. an event or condition; ii. a statement describing that event or condition; iii. the statement was made while declarant perceived it or immediately thereafter. 1. Note that, unlike Rule 803(2), Rule 803(1) does not focus on the emotional state of the speaker. Timing, not excitement, is the key. iv. independent corroboration (NY) 1. NY exception requires independent corroboration of facts set forth in statement. So there needs to be another person present with the declarant who can verify the accuracy of the declarants statement. c. Examples: i. Pros of for murder of victim. claims he was in another town the day of murder. Pros calls witness to testify that on day of murder, witness was on phone with victim, and victim said, just walked into the room, looks like he wants to show me his new chainsaw. Call you

back. Victim never called back. This prob qualifies as a present sense impression victim described the event that was occurring as it was occurring. 2. RULE 803(2): EXCITED UTTERANCES a. Rationale: Hearsay of this type is reliable enough to admit because excited people dont have the presence of mind to lie. i. Critique - excited people frequently make mistakes of perception and narration, and really good liars dont need a lot of time to think. b. Elements: i. a startling event or condition; ii. a statement relating to that event or condition; and iii. the declarant was under the stress of excitement caused by the event or condition when she made the statement. 1. Note that the rule does not explicitly make timing an element, although it is true that, after a startling event, the more time that passes the less likely the declarant will still be excited. c. Examples: i. To prove that a killing took place outside a bank at 1pm, Pros calls witness to testify that she was in front of the bank at 1pm when she heard bystander scream, Did you hear that gunshot? Although hearsay, this is an excited utterance & admissible. Also, this would prob qualify as a present sense impression. 1. However, if bystander did not scream until witness noticed bystander looking around frantically & asked what happened then not as clear. It depends on whether the remark rose from the startling event or was a deliberative reaction to question asked. a. Note that this determination is a 104(a) analysis, where court would have to find by a preponderance of the evidence. The evidence would only be admitted if pros met this burden. Therefore, if court is evenly balanced on the issue, then proponent has not met their burden (more likely than not) & not admissible. ii. on trial for attempted murder. Witness, a nurse, to testify that several weeks after attempted murder, victim finally awoke from coma and first thing he said was did it! Although several weeks have actually passed, no time at all has passed for the victim, so this would qualify as an excited utterance. 3. RULE 803(3): THEN-EXISTING STATE OF MIND OR PHYSICAL CONDITION a. A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, orterms of the declarants will. b. Rationale: i. When the declarant speaks about her present internal sensations, condition, or state of mind, she suffers no perception problem. ii. Further, there are no memory problems since the exception only applies to internal conditions that are contemporaneous with the statement. iii. The exception might also be justified on the basis of need for the evidence. State of mind frequently is an issue under the substantive law and there are few reliable ways to prove state of mind other than through the words of the person whose state of mind is at issue. c. Examples: i. The evidence is admissible under this provision only when it is offered to prove something internal to the speaker; not to prove facts external to the speaker 1. I believe I am the Czar would be admissible to prove declarant believes he is the Czar (relevancy show insanity). His belief is an internal state of mind that, presumably, the speaker accurately perceives. But that statement should not be admissible to prove a fact external to the speaker, such as his membership in the royal family of Russia. Speaker could be wrong about that external fact.

a. but not including a statement of memory or belief to prove the fact remembered or believed. i. Thus, I believe I am the Czar is not admissible under this provision to prove the speaker is the Czar b/c that would be a statement of belief offered to prove the fact believed. ii. Pros for murder. To prove was killer, evidence that a few days before killing, victim said, I am afraid of . Relevant b/c it tends to show that did or said something that would make victim fearful. Hearsay b/c being offered to prove what it asserts that victim was fearful of . Falls under 803(3) b/c it is the victims statement of his then existing state of mind. 1. However, if victims statement was, I am afraid b/c threatened to kill me, only the part that states he was afraid is admissible under this exception. B/c he threatened to kill me would not be admissible, and would be extracted (called redaction). It is not admissible as a party admission either, b/c the statement (threat) is contained within inadmissible hearsay (victims statement that made the threat). iii. Most courts would only admit evidence under 803(3) if offered against the person who made the statement. Although the evidence has high probative value as to the declarants state of mind, it has no indication as to anyone elses state of mind. 1. Pros of Zed & Abel for kidnapping & murder. Wants to give Zed a harsher sentence b/c he actually killed victim. To prove this, evidence offered that day before killing, Abel said, I will stand guard, but I dont want to have anything to do with the violence. This is a statement of Abels then-existing state of mind (that she didnt intent to kill). However, it is being offered against Zed, not Abel. Also not a co-conspirator statement b/c not made in furtherance of the conspiracy. 2. Also, the statement must be of the declarants state of mind, not someone elses. a. Pros for murder. To prove did it, evidence that on the day of killing, victim told a friend that, is planning to come over for dinner tonight. Although the statement is of state of mind, it is that of , not victim, the declarant. The statement is of another persons intentions, not the speaker. iv. Distinction between hearsay and non-hearsay statements that tend to show the declarants state of mind. A statement that asserts the declarants then-existing state of mind (I dont like Tom) is hearsay. A statement that does not assert the declarants state of mind, but from which her state of mind may be inferred (Tom is an inconsiderate son-ofa), is not hearsay. d. Mutual Life Ins. Co. v. Hillmon wife sues insurance co to recover for alleged death of her husband. To prove he was dead, she offered evidence of a body found in Colorado & claimed it was her husband. Insurance co alleged that it was not her husband, but someone else (Walters) that husband murdered & brought there to create the impression that husband had died. Ins co offered evidence letters written by Walters that said, I intend to go with [husband] to Colorado. i. Assuming the letter is hearsay, it would be admissible under 803(3) b/c statement of intent is a statement of state of mind. However, if Walters had stated directly, I went to Colorado, then no longer a state of mind. ii. If letter had said, I am freezing here in Colorado, this would not be a statement of a thenexisting physical condition, b/c it states an external fact. However, it may qualify as a present sense impression exception. e. Why necessary to admit statements of a persons state of mind? i. State of mind is not capable of direct proof. Though a persons actions provide some basis for assessing her state of mind, the best evidence is what the person has said that either asserts her state of mind or circumstantially indicates what it is. If such statements were not admissible, it would be very difficult to determine a persons state of mind at a relevant time with any reasonable certainty. 4. RULE 803(4): STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT

a. Rationale: the declarant may be expected to tell the truth when providing information to obtain medical services. b. Elements: i. a statement made for purposes of obtaining a medical diagnosis or treatment; ii. the statement describes medical history, past or present symptoms, pain, sensation, causes or source; iii. the statement is reasonably pertinent to diagnosis or treatment. c. Examples: i. The rule places no limit on who makes the statement or to whom the statement is made. Thus, while patients can make Rule 803(4) statements, people who are not patients can also make statements that qualify under that rule. 1. A parent discussing a childs condition could make a Rule 803(4) statement. 2. The statement could be made to the doctors receptionist for the purpose of being relayed to the doctor. 3. A paramedic relaying to the doctor that patient told him my hip hurts. ii. Statement must be made for purposes of obtaining medical treatment or diagnosis. 1. A doctors statement to the patient, You have the flu, is not admissible since it is not made for the purpose of obtaining a diagnosisit is a diagnosis. 2. s statement, when asked if she was hurt, that My leg is killing me, is hearsay. Its not made for the purpose of obtaining medical treatment just to answer witnesss question. However, it would be admissible under the 803(3) then-existing physical sensation. 3. If how the accident happened would be reasonably pertinent to medical treatment or diagnosis, then that statement can also be admissible under 803(4). a. Kid gets hit by a car. Tells paramedic, My hip hurts. I fell hard after that car hit me. My hip hurts would very likely fall under 803(3). However, I fell hard after the car hit me, would only be admissible if relevant for purposes of treatment. Whether it qualifies will depend on whether this is the kind of information an emergency room doctor would consider reasonably pertinent to medical diagnosis or treatment. b. However, if the statement made was The driver of the car had red hair, this is not at all pertinent to medical diagnosis. 5. RULE 803(5): RECORDED RECOLLECTION a. Recorded recollection vs. refreshing memory i. Refreshing memory Anything can be used to refresh a witnesss recollection. the document is not admitted into evidence; it is given to witness to review, taken away, and then if/when witnesss memory is refreshed, witness testifies. B/c the witness is not just telling us what document says (by reading it, which impermissible), no hearsay problem. ii. If refreshing memory doesnt work, you want to bring the document into evidence via 803(5). If the writing is hearsay, it can be admitted only if it fits within an exception. b. Rationale: There is a need for the evidence, since the facts cannot be shown by the witnesss testimony, and the hearsay is probably reliable because the record was made when her recollection was fresh. c. Elements: i. The writing is a record of facts about which the witness once had knowledge; ii. the witness now has insufficient recollection to testify as to those facts; iii. the writing was made or adopted by the witness; iv. at a time when the matter was fresh in her memory; and v. the record accurately reflects that prior knowledge. d. Example:

Barrom brawl; pros for assault & battery. is Caucasian. offers as evidence testimony of bartender to describe the person who started it. Witness doesnt remember. shows witness a note that witness wrote that the person was an asian male. still doesnt remember, so wants to offer into evidence. must establish by asking witness (establishing a foundation) that (1) the witness once had knowledge of the facts contained in the note, (2) that witness cannot now remember, (3) that witness wrote the note, (4) that when she wrote it, the matter was fresh is her memory, and (5) the note was accurate. 1. Opponent may motion to interrupt to conduct limited cross (voir dire) on the issue of admitting this document limited to preliminary facts necessary under 803(5) elements. 2. If witness says she may have written the note weeks after incident since proponent has burden to establish all preliminary facts, as long as it can be established that at the time witness wrote it, the matter was still fresh in her memory, then its fine. 3. If the note said White Asian Male (white crossed out) - prosecution may wants document admitted as an exhibit. Rule 803(5) does not allow the proponent of the document containing recorded recollection to offer the document into evidence as an exhibit, but it does allow the opponent to do so. Though the opponent normally will not want to do this, in this case the pros does. 4. If witness did not actually write the note, an officer did after witness made the statement that it was an asian male no 803(5) b/c witness had to have written it. If officer testifying (since he wrote it), no good either, b/c officer needs to have had personal knowledge of the matter recorded. However, if witness adopted the officers recording of the statement (saw what was written & agreed), then ok under 803(5). 6. RULE 803(6): RECORDS OF REGULARLY CONDUCTED ACTIVITY a. A memorandum, report, record, or data compilation, in any form, or acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902 (11), Rule 902 (12), or statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness i. Business includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. ii. Note: it may be necessary to call a custodian to lay the foundation establish the preliminary facts that the document meets the requirements of 803(6). b. Rationale: The evidence is reliable enough to be admitted because businesses have an incentive to create procedures to ensure the accuracy of records kept in the regular course of business. Because modern business is so large and complex, there also is a need for this type of hearsay because it is often difficult or impossible to call as a witness all the persons involved in preparation of business records. c. Business Record Foundation i. Is document kept in regular course of business? ii. Is it the regular course of business to keep such document? iii. Is the information contained therein placed there at or about the time of action? iv. Was the provider of information under a legal/business duty to do so? d. Examples:


Writing or records, to be admissible, must be made under duty or on information imparted by persons under duty to impart information. 1. Johnson v. Lutz - Memorandum of policeman not witnessing automobile accident nor made in regular course, based upon hearsay statements of third persons present, held inadmissible. ii. Auto accident; personal injury. After accident, taken to hospital emergency room. To prove extent of injuries, offers into evidence a record of the emergency room, written by the attending physician, which states Preliminary diagnosis: Permanent impairment of anterior keester. Hearsay b/c being offered to prove s injuries. 1. To demonstrate that this is a business record, must show: a. The hospital is a business; b. The record must have been made at or near the time of the exam in the emergency room; c. The author, who is described as the attending physician, had knowledge of the matters described and had a business duty to be accurate; d. The record must have been kept in the regular course of a regularly conducted business activity. (Examining and diagnosing patients undoubtedly qualifies); e. It must be the regular practice to make such records. iii. A court transcript of a trial is a business record. 1. It may also qualify as a recorded recollection the court reporter at one point knew what was said since she recorded it, but most likely no longer remembers. 7. RULE 803(8): PUBLIC RECORDS AND REPORTS a. Many public records are also business records, since government agencies can be businesses. However, the public records exception can extend to records outside the scope of the business records exception. i. Rule 803(8) extends to matters that are not recorded with regularity. 1. Ex: a public official might only once in a career record observations about an accident at a nuclear power plant, but still could be admissible under Rule 803(8). b. Rationale: i. government officials are considered trustworthy, ii. the legal duty to be accurate is considered an incentive to be careful, and iii. the exception is considered necessary b/c public officials handle many matters and may forget facts important to the determination of the suit. c. Three section of Rule 803(8): i. Part (A) covers records and reports setting forth the activities of an office or agency. It applies to both civil and criminal cases. Any party can take advantage of the exception. 1. Ex: payroll documents, personnel records, records of receipts and disbursements, etc. ii. Part (B) covers matters observed pursuant to a duty imposed by law when there is also a duty to report. 1. Ex: weather records, maps, and a court reporters transcript. 2. Part (B) prohibits the use, in criminal cases, of records prepared by law enforcement personnel (b/c of Congresss concern that the public records exception would be used to substitute police reports for live testimony of police officers in criminal cases). Courts have interpreted to apply only when offered against the , not by the . a. Note: if the business record is, for example, personnel files in HR this falls under Part (A) and can be used against a in a criminal trial. iii. Part (C) of the exception covers findings resulting from an investigation made pursuant to legal authority.


1. Ex: administrative findings about sex discrimination or employment discrimination and FAA findings about the safety of a crashed plane. 2. Part (C) restricts the use of public records in criminal cases. They may not be used against the accused in a criminal case, though they may be used in civil cases and against the prosecution in criminal cases. 8. RULES 803(7) AND 803(10): ABSENCE OF ENTRY IN BUSINESS OR PUBLIC RECORD a. The rationales for these exceptions similar to Rules 803(6) and (8). b. When the absence of something in business or public record is at issue. i. Ex: Pros for possession of an unregistered firearm. Pros calls the custodian of records of the State Department of Public Safety, who offers to testify that a diligent search of the records of that public agency reveals the absence of any registration for the firearm found in s possession. This exception would apply. 1. Note: The pros can argue that it is not offering any out-of-court statement. Instead, it is offering only the in-court testimony of a witness who will state, from personal knowledge, that she found no firearm registration in s name. ii.

Exceptions to Hearsay Where Unavailability of Declarant Required

1. RULE 804(A): WHEN THE DECLARANT IS DEEMED UNAVAILABLE - Unavailability as a witness includes situations in which the declarant: a. (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or i. A witness may no longer claim privilege if given immunity. If witness who has been given immunity refuses to testify, however, she may still be deemed unavailable for persisted refusal to testify (next provision). b. (2) persists in refusing to testify concerning the subject matter of the declarants statement despite an order of the court to do so; or c. (3) testifies to a lack of memory of the subject matter of the declarants statement; or i. Ex: Retrial. At previous trial, witness testified to specific facts she witnessed. But at second trial, witness testifies that she doesnt really remember the details anymore. Witness is prob unavailable because she does not have sufficient recollection of the subject matter of her prior statement (her testimony at the first trial) to permit meaningful testimony at the present trial. d. (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or i. Battery (civil) case. attacked, names as her attacker, then lapses into a coma. (rep) wants to offer the statement under the dying declaration exception. This exception requires the declarant to be unavailable. is clearly unavailable under this provision. Even if not comatose, but still in hospital & not well enough to go home, still unavailable - if not well enough to go home, then also prob not well enough to attend trial. 1. Note prob wont work to take trial to hospital then can testify. Too costly, prejudicial seeing in hospital, so prob still unavailable. e. (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or in the case of a hearsay exception under subdivision (b) (2), (3), or (4), the declarants attendance or testimony by process or other reasonable means i. Taking all reasonable means this would include contacting employer or others that might know witnesss whereabouts, going to witnesss home, sending notice (by mail), service of process (subpoena - necessary), etc. Satisfaction of this depends on whether there were additional reasonable steps that could have been taken. f. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the

proponent of a statement for the purpose of preventing the witness from attending or testifying. 2. RULE 804(B)(1): THE FORMER TESTIMONY EXCEPTION a. Elements: i. (1) declarant is unavailable; ii. (2) declarant testified at a prior hearing or deposition; 1. Grand jury testimony, though typically given under oath subject to penalty of perjury, is rarely subject to cross-examination b/c the potential targets of the grand jury investigation are not parties to those proceedings. Even the witnesses called to give testimony before the grand jury usually are not permitted to have their lawyers in the courtroom during their testimony. Because the grand jury is such a one-sided proceeding, the requirements of Rule 804(b)(1) are prob not satisfied (but depends still do analysis if opportunity for cross, same situation & motive, then maybe yes). iii. (3) the party against whom the statement is now offered, or in a civil action, a predecessor in interest, had the opportunity to examine declarant at that prior hearing or deposition; and 1. Must be offered against the same party as previous trial b/c there must have been an opportunity to cross-examine. Therefore, if in 1st trial offered against A, but at 2nd trial both A and B (2 s), this wouldnt apply b/c B never had a chance to cross. This is in crim trial though in civ diff b/c it would be same predecessor in interest. iv. (4) that party also had a motive to examine declarant at that prior hearing or deposition that is similar to the motive it has at the instant proceeding. b. Rationale: The hearsay is sufficiently reliable b/c it was given under oath and was subject to cross-examination with the same vigor (and for the same purpose) as that which would have been performed in this trial had the declarant been available to testify. c. Examples: i. Pros for bank robbery. At an earlier trial, which resulted in a hung jury, Witness testified for the pros that she saw and Zed point weapons at the bank tellers and demand all the money. At the new trial, the pros calls Witness to give the same testimony, but Witness refuses to testify, claiming a non-existent privilege, and continues to refuse even after the court orders Witness to testify. Pros wishes to offer into evidence the transcript of Witnesss testimony from the first trial. Hearsay within hearsay transcript is a business record, so admissible. 1. (1) Witness is unavailable (refusing to testify), (2) she testified at a prior trial, (3) being offered against , the same party it was offered against in the first trial, and (4) had opportunity in previous trial to cross-examine, and had same motive (same circumstances as would be at this trial). 3. RULE 804(B)(2): THE DYING DECLARATION EXCEPTION a. Rationale: a declarant is unlikely to lie if she believes her death is imminent. i. This is based on assumptions about the religious beliefs and psychological state of the declarant that might not be warranted. For some, the incentive to lie may be the greatest just before death, since it is the last chance to have some effect here on earth. ii. The reliability of these statements might also be questioned on the ground that, just before death, the declarants emotional state or even physical condition may compromise perceptions, recall, and narrative abilities. b. Elements: i. this is a homicide prosecution or any type of civil action; ii. the statement was made while the declarant believed her death was imminent; and

1. Pros of for murder; denies involvement. Pros wishes to offer evidence that before dying, Victim said, I dont expect to make it. I hope Defendant pays for this. Although clear victim didnt think she would survive, it is not clear that she believed death was imminent when she made the statement. The statement will only be admissible if the court is persuaded that it is more likely than not Victim believed death was imminent when she made the statement. 2. The rule requires only that the declarant believe death is imminent at the time she makes the statement. It does not require that the declarant actually die shortly after speaking. In fact, if this were a civil case, death itself would not be a requirement. Possibly, the fact that Victim did not die until much later would lend some support to the argument that Victim did not believe death was imminent, but in many cases it will not help the court decide what was in Victims mind at the time she made the statement. iii. the statement concerns the cause or circumstances of what declarant believes to be her impending death. 1. Will contest. Testator died from injuries sustained in car crash. offers evidence that, shortly before she died, the testator said, Im going fast. My will was the product of undue influence! The statement does not concern the cause or circumstances of what the testator believed to be her impending death. 4. RULE 804(B)(3): THE DECLARATION AGAINST INTEREST EXCEPTION a. Rationale: people usually dont say things against interest unless they believe the statement to be true. b. Elements: i. Declarant is unavailable 1. Note: the declarant does not have to be a party in the case. Party admission rule 804(b)(3) it must have been made or attributed to a party. Also no requirement of unavailability for party admissions. ii. Must have been against interest when made. 1. Note that under Party admission rule 804(b)(3), it need not be against interest when made. 2. Ex: in negligence action arising from car accident, claims s car crossed the center line and struck s car. To prove this, evidence offered that passenger in s car told officer that she jokingly grabbed s steering wheel, causing to cross into center line. Passenger is unavailable, so officer testifies. The statement would have tended to subject Zed to liability for negligence. A reasonable person would not have made such a statement to the police unless she believed it to be true. iii. Also, a statement tending to inculpate the declarant and offered to exculpate the criminal defendant is not admissible unless the defendant provides substantial corroboration for the accuracy of the statement. 1. Pros of for distribution of cocaine. denies involvement, and claims that Zed was the guilty party. Evidence that Zed said he had just set up a terrific cocaine distribution network. By itself, not enough need corroboration. However, if a large amount of cocaine & a list of prospective buyers were found in Zeds apartment - that would satisfy the requirement for substantial corroboration. c. Problem: When a statement that directly the declarant is mixed with statements of fact and other matters that are not so clearly inculpatory. i. Williamson v. United States Cocaine found in trunk of car. Driver admitted knowing about cocaine and said he was delivering it for Williamson. Driver refused to testify at trial. Argument that the exception did not apply because the statements were not against interest, given the context - The declarant was caught with the goods and was just trying to shift the blame and curry favor. Also, the part of the statement

that incriminated Williamson literally was not against Drivers own interest. On the other hand, the statements arguably were against interest in that they show that Driver was privy to detailed information about the conspiracy and, thus, was a member thereof. 1. Supreme Court held that the rule does not allow admission of non-selfinculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The Court pointed out that the rationale for this rule does not apply to neutral or self-serving statements, even when they are contained within statements that are otherwise against-interest. 2. So in analysis, rather than treat a narrative as a single statement and determine whether, as a whole, the statement is against the declarants interest, the Court held each part of the statement is a statement in itself and must be against interest in order to be admitted. a. Pros of for kidnapping. Zed admits involvement, but claimed his only role was to develop information about the victims daily routine and to pass it along to , who Zed claimed actually captured and held the victim. Zed then dies. Break the statement into parts and determine the admissibility of each part. i. Zeds admission to involvement & details of his role in the kidnapping is against his interest. Even if Zed had a motive to minimize his role, he was still incriminating himself by admitting to this level of involvement. ii. Zeds statement that it was to whom he passed the info is not really against Zeds interest. However, if Zed gives specific details about exactly how it happened, what did specifically, etc., this might be against Zeds interest b/c it shows the extent of Zeds involvement. iii. Note though after Crawford v. Washington, Zeds statement is testimonial in nature, so if Zed unavailable to testify, never had opportunity to cross, so the entire statement would be inadmissible. 5. RULE 804(B)(6): THE FORFEITURE BY WRONGDOING EXCEPTION a. Rationale: The hearsay rule should not be abused by excluding hearsay when the unavailability of the declarant was procured through the opponents wrongdoing. b. Evidence is admissible over hearsay and Confrontation Clause objections as against a who engaged in the wrongdoing to procure a witnesss unavailability, as well as against any party who acquiesced in that wrongdoing. i. A waives Confrontation Clause rights (and, thus, hearsay objections) if a preponderance of the evidence establishes either 1. that the participated directly in planning or procuring the declarants unavailability through wrongdoing, or 2. that the wrongful procurement was in furtherance, within the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy. ii. United States v. Cherry 5 s charged with involvement in a drug conspiracy. One of the s murdered the main prosecution witness. Pros offered the hearsay statements of the witness against all the s. The court remanded for a determination whether the other s waived their rights under this standard. c. Examples: i. Negligence action following car crash. Witness, who plans to call to testify, observed the collision & had told a police officer the day after crash that ran a red light. pays witness to disappear for a while, making Witness unavailable to testify. Although hearsay, this falls under exception & statement would be admissible.

The rule is intended to admit hearsay only when the party wrongly procured the witnesss absence for the purpose of preventing the witness from testifying. 1. Pros of for murder. Pros alleges killed victim to prevent her from testifying at s racketeering trial. Pros wants to bring evidence in at the murder trial that Victim accused of being a big time mobster involved in all kinds of illegal activity. This rule would only apply in the racketeering trial. iii. When the wrongful procurement was in furtherance, within the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy. 1. Pros for bank robbery. Few days before trial, Zed, a co-conspirator, killed Witness, a bank customer, to prevent her from testifying against . knew nothing of Zeds plan to kill Witness before Zed carried it out, though did not inform the police of Zeds act after learned of what Zed had done. Where Defendant had no advance knowledge of Zeds plan to kill Witness, it is not possible to say that Witness acquiesced in Zeds act. Its not clear, but probably also not in furtherance of conspiracy this would open the door to liability of a co-conspirator to almost any act taken by another conspirator to impede prosecution, and prob goes beyond scope of the rule. a. However, if knew what Zed planned, tried to talk him out of it, but when he couldnt, told Zed, Do what you want, I cant stop you, this might be interpreted to mean that acquiesced to Zeds plan. But uncertain. 6. RULE 807: THE RESIDUAL EXCEPTION a. Rationale: to permit the law the flexibility to admit valuable evidence that appears reliable even though it is hearsay and does not fit into one of the exceptions in Rules 803 and 804. i. The residual exception departs from CL, under which hearsay would only be admissible if it fit within a specific exception. Congress apparently intended the residual exception to be used sparingly, but not all courts seem to appreciate this. ii. Elements: 1. Statement is offered as evidence of a material fact 2. the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and a. Ex: product liability action against car manufacturer alleging that the cars defectively designed steering mechanism failed, causing s husband to lose control and crash. Husband died from injuries, but before dying, tape-recorded a description of what happened. The tape would not be admissible under this exception unless it was the best evidence they have. For example, the car itself could be inspected by experts, and that would be the best evidence (most probative). If, however, car is incinerated, & no witnesses, then it might be, as long as court finds it trustworthy. 3. the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. b. New York does not have such a catchall rule. There are indications from scattered cases that, under the right set of circumstances, the courts would be willing to expand the admissibility of hearsay. VII.


HEARSAY & THE CONSTITUTION a. Relationship Between Hearsay and The Confrontation Clause
i. Even if hearsay fits within a hearsay exception, a criminal still can object on the ground that admitting the hearsay would violate the Confrontation Clause.



1. The Confrontation Clause of the 6th Amendment provides that In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . . a. The language of the clause is susceptible to a variety of plausible interpretations. i. All hearsay declarants whose statements are offered by the prosecution would be considered witnesses against the , and therefore the Constitution would require that the be entitled to cross-examine them at trial. But this would lead to the exclusion of virtually all prosecution hearsay. ii. The amendment requires merely that the be confronted with whatever witnesses the prosecution chose to produce at trial. iii. Witnesses against the referred only to persons who were available to testify. So, the prosecution would be required to produce declarants for cross-examination when possible, but the statements of unavailable declarants could be freely admitted. 2. No clear guidance in choosing among these or other possible interpretations. The Supreme Court has never established a general principle, but instead decides on an ad hoc basis. Ohio v. Roberts (this test no longer applies) established a two-pronged test for satisfying the Confrontation Clause when hearsay is offered against an accused: a. Prong 1: The declarant must be unavailable. b. Prong 2: The statement must bear adequate indicia of reliability, which is the case if the statement falls within a firmly rooted hearsay exception or there are particularized guarantees of trustworthiness associated with the statement. Crawford v. Washington (2004) changed everything, overruled Ohio. 1. The court must decide whether the declarants statement is testimonial in nature. a. If it is, it is inadmissible unless i. declarant is unavailable and defendant had a prior opportunity to cross-examine declarant; or ii. the prosecution produces the declarant at the trial. b. If the declarants statement is not testimonial in nature, the Confrontation Clause does not pose an obstacle to its admission. The statement is admissible if it satisfies the requirements of the hearsay rule and other evidence rules. 2. Davis v. Washington - Court defined testimonial more clearly, at least in the context of statements made to law enforcement officers. a. If the statement is made in the course of an ongoing emergency, it will not be treated as testimonial. b. If, however, the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution, the statement will be treated as testimonial. 3. Melendez-Diaz v. Massachusetts (2009) at state court drug trial, prosecution introduced certificates of state laboratory analysts setting forth that material seized by police and connected to petitioner was a specific quantity of cocaine. Pursuant to Massachusetts law, the certificates were sworn to before a notary public and were offered into evidence by the prosecution as prima facie evidence of what they asserted. Melendez argued that this violated the confrontation clause. The certificates here are affidavits, which fall within the core class of testimonial statements covered by the confrontation clause. They stated that the substance found in petitioners possession was, as the prosecution claimed, cocaine of a specific weight and this was the precise testimony that the analyst would be expected to provide at trial. Petitioner was entitled to be confronted with persons giving this testimony at trial. 4. Example: a. Pros for the shooting murder of Victim on a street corner. claims he didnt do it, just wrong place wrong time. Witness arrived at the street corner moments after the shooting and saw Walker kneeling next to Victim, sobbing. If permitted, Witness will testify that Walker suddenly pointed to and screamed, You did it! Walker dies.

i. ii.

This is hearsay, but prob falls under the excited utterance exception. The statement is probably non-testimonial (b/c no structured police questioning), and Davis appears to hold that non-testimonial statements are not protected by the confrontation clause.

b. Constitutional Limits on the Exclusion Of Hearsay i. Issue is whether s rights are violated if a rule of evidence is used to exclude s evidence. 1. Chambers v. Mississippi - was convicted of murdering a policeman. called Witness to testify & introduced Witnesss written confession to the murder. Witness then repudiated the confession during cross by pros. When tried to attack Witnesss credibility, trial court didnt allow b/c of voucher law that you cant impeach own witness (under fed rule 607, you can do this). then sought to introduce Witnesss out-of-court statements confessing to the murder. Trial court excluded this evidence on the ground it was hearsay. a. The Supreme Court overturned the conviction on the theory that, because defendant had been unable to present the evidence in his favor, he had been denied due process. 2. There is no constitutional right to present any and all evidence only a constitutional right to present reliable evidence. a. Pros for murder. Crime witnessed by several people who all properly IDd in lineup. wants to call Witness to testify that Zed confessed to the murder. Zed is unavailable. is unable to present any evidence corroborating the trustworthiness of Zeds statement to Witness. i. This case is not like Chambers because there is little to suggest that the evidence is reliable, and the testimony of several eyewitnesses that committed the crime render s guilt not nearly as questionable as that of Chambers.Admission of the evidence would not violate s constitutional rights.




i. Although character evidence is relevant, because a person with a propensity to do something is more likely to do it, we limit its admissibility because there are at least two ways it might cause unfair prejudice. 1. The evidence might divert jurors from the question of whether committed the crime charged b/c, once having heard s character, jurors may be willing to find him guilty simply because he is a bad person. 2. Even if jurors remain focused on the question of whether committed the crime, they might give too much weight to the character evidence. Character Evidence is evidence that says something general about a person and carries with it an ethical or moral judgment. 1. Type of propensity evidence b/c the evidence makes a general statement about a person, it invites jurors to draw inferences about how the person acted in connection with the events in question. And because the evidence conveys a moral or ethical judgment, jurors are more likely to be diverted from the issues and focus on whether the person in question is good or bad. The first key to determining admissibility is ascertaining what the character evidence is offered to prove.




1. A party might seek to use character evidence to prove a. character itself because character is an issue in the case (Rule 405); b. character of a witness for lying or truth-telling (Rules 608, 609); or c. character of a party or other person as circumstantial evidence of her conduct (Rule 404(a)). Reputation is admissible hearsay. Reputation is hearsay if offered to prove the truth of the matter asserted because it is an out-of-court statement by the community. Though the evidence is hearsay, it is admissible under Rule 803(21), which provides an exception for [r]eputation of a persons character among associates or in the community.

b. The Rules i. Rule 404 (a) - Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: 1. (1) In a criminal, a s character is never in evidence, unless the put his character at issue (then pros can rebut only). a. Note: Only applies to criminal cases. Character evidence offered to circumstantially prove conduct is inadmissible in civil cases, with the exception of sexual abuse and child molestation cases (Rule 415). Reason is constitutionality must allow to present a case. 2. (2) Evidence of victims character can be offered by , and Pros can rebut it. Or, if says victim was 1st aggressor, pros can bring evidence victims character in (peacefulness). 3. Character of witness - Rules 607, 608, and 609. ii. Rule 404 (b) - Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. 1. However, may admit this evidence for other purposes to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. iii. 405(a) when character evidence is admissible, proof may be made by testimony as to either reputation or in the form of an opinion. On cross, however, you may only inquire into relevant specific instances of conduct. iv. 405(b) when character/trait is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct. c. Evidence of a Criminal Defendants Character i. Two main restrictions on s right to prove innocence with character evidence: 1. The evidence must concern a pertinent trait of defendants character. a. Defendants possession of the particular character trait must make it less likely that defendant would commit the charged crime. 2. The evidence may only take the form of reputation and opinion a. In addition, the witness testifying in either form must possess the necessary knowledge to support the testimony. i. In the case of reputation, the witness must have sufficient familiarity with defendants reputation in the relevant community. ii. In the case of opinion, the witness must know defendant personally, and that knowledge must be based on a sufficient amount of contact to form a reliable opinion. ii. Once the offers character evidence to prove her innocence: 1. The prosecution may present character evidence to rebut the s evidence. a. To rebut, the prosecutions evidence must concern either the same character trait or one closely enough related to that trait to undercut the effect of the defendants evidence. 2. If the prosecution wishes to present its own witnesses, it will be bound by the same restrictions that apply to s witnesses: the evidence may only take the form of reputation or opinion. The can rebut this using specific instances as well.


3. If the prosecution wishes to cross-examine s character witnesses, the evidence may include reputation or opinion, and may also include references to specific instances of conduct. 4. If the prosecutions question on cross-examination mentions a specific instance of conduct, the prosecution must satisfy the court that it has a good faith reason to believe the conduct actually occurred. a. Rumors that defendant was arrested may be false. Dont want to prejudice jury. b. NOTE: Court may still forbid the prosecution from asking about specific instances of conduct during cross, under rule 403, if it finds probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Exception - Rule 413: Sex Crimes - In a criminal case of rape, the prosecution is permitted to bring evidence of specific instances of rape committed by in the past, to prove committed the crime. Rule 413 only admits evidence of other specific instances of conduct, not of reputation or opinion concerning the defendants character for this type of misconduct (for ex, reputation for being a sexual predator). To bring in past specific instances, it must be the same type of crime; thus, history of child molestation cannot be brought in in a rape case.

d. Evidence of an Alleged Crime Victims Character i. General Principles: 1. The defense is permitted to be the first to offer the evidence, after which the prosecution may rebut. 2. On direct, only reputation and opinion evidence are permitted while specific instances evidence is permitted on cross. 3. And, of course, everyone is limited to offering evidence of pertinent character traits. ii. Special rule for rape victims 1. Rule 412 is a special exception to Rule 404(a)(2). a. Rule 404(a)(2) permits s to present evidence of the victims character to prove action in conformity, while Rule 412 restricts this in a sexual assault case. b. Rule 412(a)(1) excludes evidence of victims other sexual behavior and subsection (2) excludes evidence of a victims sexual predispositions. 2. Olden v. Kentucky convicted of rape. The alleged victim, Matthews, testified that raped her. She said that, after the rape, she asked to be dropped off at the home of a man named Russell. She then told Russell had raped her. wished to cross-examine Matthews about her intimate relationship with Russell. The purpose of the evidence would have been to show that she had a motive to lie about being raped to conceal from her boyfriend her consensual sexual activity with . a. The evidence does have high probative value, but the court still excluded the evidence out of concern for its potential prejudicial impact. Specifically, the court was concerned that a jury might be prejudiced against Matthews for being involved in an inter-racial relationship. b. But this has to be balanced against the s 6th amendment right to put on a defense. Our system relies on the trial judge to make a careful, case-by-case determination of the probative value of the evidence and its potential prejudicial impact. 3. In rape case, evidence of victims prior consensual sex/relationship with the probably will be admitted to prove s defense that the sex was consensual. a. This is unless the circumstances indicate that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. If, for example, the two consensual episodes occurred long before the alleged sexual assault, or the evidence strongly suggests that the relationship had ended some time before the alleged sexual assault, the court might exclude the evidence. Also if physical evidence suggests that the event at issue involved violence. iii. Special rule for homicide prosecutions 1. Rule 404(a)(2) contains another exception to the general rule that evidence of the victims character is inadmissible to prove the victims conduct.

a. The rule states that evidence of the character trait of peacefulness of the alleged victim can be offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor. i. This part of the rule applies even if the defense has not offered evidence of the victims character. The need only have offered some evidence, in any form, that the victim was the first aggressor. b. If the defense offers evidence that the alleged victim had a particular character trait (which we know the defense is permitted to do), then the prosecution may offer evidence that defendant had the same character trait. e. Other Crimes, Wrongs, or Acts i. Although evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity, you may admit this evidence for other purposes to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The factfinder is offered evidence that committed another act (the uncharged misconduct) that permits the inference that the committed the charged act or had the mental state required to convict. 1. MIMIC (motive, identity, mistake/accident or absence thereof, intent, common plan or scheme). 2. Ex: charged with selling drugs to an undercover officer on a certain street corner. admits selling the drugs, but claims entrapment. To prove a preexisting intent to sell the drugs, and thus rebut the claim of entrapment, the prosecution offers evidence that on anotheroccasion on the same corner, sold the same type of drug to another individual (not an undercover officer). The evidence of the prior sale (the uncharged misconduct) is the predicate for an inference that possessed the required intent on the charged occasion. 3. Robbins v. State was charged with killing the 17-mo. old daughter of his girlfriend. Victim found with bruises on body; said caused by incorrectly performed CPR efforts rather than from any intentional act by . testified that he loved the victim and would not have harmed her. Court permitted pros to present evidence that, on 4 other instances within a 6 mo. period when the victim was left in s care, she suffered various physical injuries. The evidence was admissible under Rule 404 to prove a fact other than s character, namely, that his relationship with the victim was not a loving one, as he alleged. a. The doctrine of chances - evidence is not admitted to show is violent or murderous or has some other pertinent character trait. Rather, the evidence that the victim repeatedly suffered physical injuries when in s care is just too unusual to be attributable to coincidence or accident. Thus, the evidence increases the probability that her fatal injuries were caused by an act of . i. Sometimes difficult to draw lines in some cases when are prior incidents too unusual? 1. What if victim injured only once before? What if injured 4 times, but took care of victim hundreds of times? ii. What is a crime, wrong, or act? 1. When the evidence does not concern an act of misconduct, it is unlikely the jury will draw a character inference. Thus, Rule 404 might be inapplicable. 2. Examples: a. Pros for theft of valuable jewelry from a neighbors home. denies involvement. To prove did it, the pros wishes to present evidence that had a key to the neighbors home. This is not inadmissible character evidence nothing suggests that came into the possession of the key unlawfully, so no chance of prejudice; & not a crime, wrong, or act. The evidence is simply relevant to show that had access to the home. 3. Timing of uncharged misconduct a. A common misconception is that MIMIC evidence always deals with conduct that preceded the events at issue. But while most evidence raising an issue under Rule 404

involves conduct of a party prior to the events at issue, the rule can also apply to evidence of conduct after those events. i. Ex: Bank robbery; perp used a very rare type of explosive to get into safe. To prove committed the crime, pros wants to bring evidence that 2 weeks after that robbery, robbed another bank using the same type of explosive. The sequence of the robberies is not important. The evidence of the later robbery shows that had access to that type of explosive. If she had access to the explosive shortly after the charged robbery, it is reasonable to infer she might have had access at the time of the charged robbery. If so, the evidence puts her in a small group of people who had the opportunity to commit the crime. 1. What if the robberies were 3 years apart? not clear. The more time passes, the lower the probative value. To decide whether 3 yrs is too long depends on the context of case & other evidence. 4. Degree of required similarity between charged and uncharged conduct a. Prosecution for murder. The murderer waited outside Victims home, accosted him when he got out of his car, forced him into the house, took all the money and jewelry from the house, and shot him. To prove was the killer, pros wishes to present evidence that several weeks earlier, had committed a murder in a nearby town using the same method. Although similar, the details are not unique. In all likelihood, this is a common method used by murderers who seek to rob and then kill their victims. 5. Judge/jury functions: required quantum of proof of uncharged misconduct a. Evidence under Rule 404(b) always involves some bad act. The rule does not say that the bad act had to result in a conviction but, if it did, that should be sufficient evidence that the act took place since it is based on proof beyond a reasonable doubt. i. Note that Rule 803(22) makes conviction evidence admissible over a hearsay objection. ii. If no conviction preliminary question of fact 1. Huddleston v. United States accused of knowingly possessing and selling stolen merchandise. He denied knowledge that the items were stolen. Pros offered evidence that two mos. before the attempted sale of the tapes, had obtained a large number of televisions from the same source who supplied the videotapes, and that had offered to sell the televisions for $28 each. a. The evidence is permissibly offered to prove knew his source supplied stolen goods in the past and therefore he knew the tapes were stolen (but not permissible to offer this to show his bad character). b. But Pros must show that the TVs were stolen and that knew it. 2. Prior to this case, this was usually a 104(a) analysis, but here says its 104(b) b/c conditional relevancy. The preliminary question of fact is whether the person engaged in the uncharged misconduct. If the preliminary fact is not true, the evidence would be irrelevant. II.

a. Rule 406 i. Habit evidence is generally admissible to prove conduct while the rules regulating character, such as Rule 404, place significant limits on admissibility. ii. How, then, do we know when evidence goes to prove habit or character? 1. Habit evidence shows a regular practice of meeting a specific kind of situation with a certain kind of conduct. Often, it is reflex or automatic behavior and, thus, says nothing about the morals or ethics of the actor. 2. On the other hand, character evidence says something general about a person and carries with it a moral or ethical judgment. Obviously, the concepts are related and sometimes are hard to tell apart. iii. Examples:

1. Negligence action arising from an intersection collision. To prove that ran the stop sign, calls Witness to testify that for the past year, she has ridden with almost every day to school, that they always cross the intersection in question, and that almost always fails to stop at the stop sign. a. Witnesss testimony establishes an adequate foundation for habit. i. The stimulus (the stop sign) is specific, and s response (failing to stop) is also specific. ii. The number of instances is sufficient as well. III.


a. This evidence concerns a person, place or event other than that directly at issue in the case. i. Normally evidence must be about the people, places, and events at issue to be relevant. But similar events evidence is relevant because, as the name suggests, it has some similarity to the persons, place or event at issue and, thus, tells us something about those matters. b. No specific rule governs this type of evidence. Rules 401 and 403 control the analysis. i. The degree of similarity between the similar events evidence and the matters at issue is often the key to that analysis. ii. Examples: 1. Negligence action against , a railroad company, following a collision between s vehicle and s train. was driving her vehicle when she approached a railroad crossing, and claims that the gate was not down and the light was not flashing, so she started to cross the tracks. denies that the gate and signal were not working. a. To prove that the gate and signal were not working, wishes to present evidence that on two occasions in the year before her accident, drivers narrowly avoided collisions at the same crossing because the gate and signal were not operating. Allowed - As long as the conditions of the prior accidents were sufficiently similar to those encountered by , the evidence carries sufficient probative value to overcome any dangers of unfair prejudice, distraction of the jury, or undue consumption of time.


ATTACKING AND SUPPORTING THE CREDIBILITY OF WITNESSES a. Rule 611: Mode and Order of Interrogation and Presentation
i. (a) The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. 1. Ex: Pros for bank robbery; denies any involvement. On cross, pros asks to admit that she owed thousands of dollars in gambling debts at the time of the robbery. The evidence that had gambling debts tend to show motive to commit robbery, which undercuts s claim she was no involved. 2. Ex: Negligence action arising for skating collision. testifies she was skating carefully when got into her path & hit her head on. On cross, asks to admit this was s first time skating. Even though said nothing about her experience as a skateboarder, her testimony that she was skating carefully leaves the impression that she knew how to skate. Evidence



that she was skateboarding for the first time puts s story in context and undercuts this implication. (c) Leading questions should not be used on direct examination of a witness except as may be necessary to develop the witness testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

b. Introduction to Impeachment i. Checklist of issues with which to analyze impeachment problems: 1. What is the evidence? 2. Is it offered to support the credibility of a witness? a. If so, has credibility been attacked? 3. Is it offered to impeach the credibility of a witness? a. If so, determine the method of impeachment and ask, is the evidence relevant and admissible under the law governing this method? To determine its relevance, apply principle of Rule 401. 4. To determine admissibility, ask: Does the law for the method in question require that proof of the impeaching facts be elicited during cross-examination of the witness being impeached, or does that law permit proof from other sources? (extrinsic evidence) Are all other foundational requirements for this method of impeachment satisfied? 5. Would admission of the evidence violate any other rules, such as Rule 403? 6. Also determine if extrinsic evidence is being offered to impeach. a. Extrinsic Evidence is evidence from any source other than the testimony of the witness to be impeached while she is testifying in this case. c. Who May Impeach i. Rule 607 states that a witness may be impeached by any party, including the party calling that witness. 1. The rule abolishes the common law voucher rule, which did not permit a party to impeach her own witness unless the witness was hostile or was the opposing party or a person identified with that party. ii. United States v. Hogan s prosecuted for drug smuggling. Carpenter was arrested in Mexico, confessed to the smuggling, and implicated s in his out of court statement. Subsequently, Carpenter claimed his statement was obtained through torture and he recanted it, including twice while under oath in other proceedings. The prosecutor called Carpenter to testify, knowing that he would deny the smuggling and deny that defendants were involved. Carpenter did exactly that. For the stated purpose of impeaching Carpenter, the prosecutor then offered Carpenters out-of-court statement implicating defendants. 1. This is impeachment through prior inconsistent statement. Such evidence undermines credibility in that it shows the witness has changed his story, thereby permitting the inference that the witness is unreliable. 2. If the statement is used to prove the smuggling, it is hearsay. If the statement is just used to prove the inconsistency, it is not hearsay because it is offered just to prove the statement is made, not that it is true. The prosecutors purpose must have been to concoct a pretense for impeachment with Carpenters prior inconsistent statement in the hope that the jury would use it for its hearsay purpose. No other reason they would want the exculpatory testimony in. a. A rule 403 objection can be raised because the probative value for impeachment purposes must be balanced by the unfair prejudice caused by the danger that the jury might improperly use the evidence for its inadmissible hearsay purpose. Objection would probably be sustained - Since the prosecution is not surprised by the testimony, the impeachment appears to be a pretense. Thus, the probative value for impeachment purposes is low while the danger that the jury will use the statement for its hearsay purpose is high.

d. Methods Not Governed by Specific Common Law or Statutory Rules i. There are several ways to attack the credibility of a witness that are not regulated by any specific law but, rather, by common sense. 1. Impeachment by challenging the witnesss opportunity to observe. Rules forbidding use of extrinsic evidence dont apply. a. Ex: Witness 1 testifies that was the shooter & had an unobstructed view. offers testimony of Witness 2 that they were standing together, and were 50 feet away from shooter & many people between them and shooter (so cant really see). Or that Witness 1 was not wearing her glasses that day. b. However, if Witness 1 says she was at bank to make a deposit, but Witness 2 says Witness 1 was making a withdrawal. Doesnt affect Witnesss opportunity to or capacity to observe. But this has no bearing on the outcome of the case only trying to show that Witness 1 has a bad memory. i. If evidence offered that Witness 1 has a reputation for having a bad memory this is inadmissible hearsay, b/c it is offered to prove to reputation is accurate. Rule 803(21) only apply to reputation for character, & having a bad memory is not a character trait. ii. If Witness 2 testifies that in her opinion, Witness 1 has a bad memory - the evidence is being offered to impeach the accuracy of Witness 1s testimony. As long as Witness 2s opinion testimony is rationally based on her perceptions, and would assist the trier of fact to determine a fact in issue, it is admissible. Opinion is not hearsay like reputation. e. Witness Character i. The first step in analyzing the admissibility of character evidence is to determine the purpose for which the character evidence is offered. Three possibilities: 1. Character evidence might be offered to prove conduct (Rule 404). 2. Character evidence might be offered to prove character itself because it is an issue in the case (Rule 405). 3. Character evidence might be offered to prove the character of a witness for truthfulness or untruthfulness. ii. Rule 608(a): Reputation or Opinion Concerning Truthfulness 1. Regulates evidence in the form of reputation or opinion (treating them the same). It permits the admission of opinion evidence concerning truthfulness only if truthfulness has been attacked. 1. Example: a. calls a witness who testifies that he has lived next door to Plaintiff for years and that, in his opinion, is a liar. On cross asks, Isnt it true that everyone else in the neighborhood says is truthful? The witness answers, Yes. i. The cross-examination testimony is admissible under Rule 608(a). This reputation evidence comes from people in s neighborhood and relates to the pertinent character traittruthfulness. ii. The reputation evidence is hearsay, however, because it is a collection of out of court statements offered to prove the truth of the matter asserted. But an exception to the hearsay rule applies here - Rule 803(21). ii. Rule 608(b): Conduct Probative of Truthfulness 1. Regulates specific instances of a witnesss conduct, other than conduct that resulted in a criminal conviction. a. Rule 608(b) places significant limits of the admissibility of evidence concerning specific instances of the conduct of a witness when offered to prove the witnesss character for truthfulness or untruthfulness.


Extrinsic evidence is rarely admissible for this purpose. Every witness has engaged in thousands of specific instances of conduct that bear on truthfulness. The trial could go on endlessly unless there is some significant limit on this evidence. 2. Examples: a. Rule 608 only applies to character evidence offered to prove witness credibility. i. Ex: Pros for drug dealing. testifies and denies committing the crime. On cross, the pros asks if he lied on a job application about a misdemeanor conviction for marijuana possession. 1. Evidence of marijuana conviction evidence of this prior bad act is being offered here to show conduct in conformity therewith, so not admissible under rule 608. 2. However, the act of lying on the job application is a specific instance of conduct & might be admissible under rule 608. a. Rule 608(b) states that admissibility is a matter of judicial discretion, which is guided by Rule 403 concerns as well as by the trial courts authority, conferred by Rule 611, to control the mode of interrogation. Court might still exclude it though b/c unfairly prejudicial outweighs probative value. Rule 609: Impeachment of Witnesses Conviction of Crime 1. This rule deals with evidence that the witness has been convicted of a crime. a. Rule 609 assumes that a prior conviction for other crimes tells us that the witness may not be a law abiding person and, thus, may be willing to commit perjury in this case. i. These assumptions can be challenged both generally and specifically. 1. A general challenge is based on the notion embodied in Rules 404(a) and 405 that inferences about a persons character and corresponding conduct may be unreliable when based on a limited number of events in that persons life. 2. A specific challenge asserts that the commission of a crime, especially one that does not involve lying, says little or nothing about whether the witness would be willing to lie under oath. a. If a prior conviction is relevant still may have little probative value where the witness is the accused, b/c it is safe to assume that, if the accused is so wanton as to commit the crime with which is he now charged, then he probably also would be willing to lie about it from the witness stand. Thus, a prior conviction on an unrelated offense tells us no more than we already know about the reliability of the accuseds testimony. b. A prior conviction must be based either on a guilty plea or on a finding that guilt was proven beyond a reasonable doubt. i. Either way, the conviction is powerful evidence that the crime was committed. ii. Also, the fact of the conviction can be proven easily, whether by the witnesss own acknowledgment or by a document adjudging the witness guilty of the crime. iii. Examples: 1. Pros for perjury. testifies that, while he made false statements, he did not know they were false at the time. On cross, pros asks Isnt it true that last year you were convicted of a misdemeanor for lying on your drivers license application? answers yes. a. Rule 609(a)(2) makes admissible a conviction for a crime of lying, whether felony or misdemeanor. There is no discretion to exclude under Rule 403. If the conviction is more than ten years old, then Rule 609(b) permits balancing. i. If more than 10 yrs old, court will balance against prejudicial effect.




b. Rule 609 places no limits on the admissibility of extrinsic evidence. So if denies lying on application, pros can submit a certified copy of the judgment of conviction. c. Rule 609 only admits evidence of a conviction. So testimony of arresting officer is not admissible. d. The prior crime must have been one of lying, or where one of its elements was lying. This isnt necessary to impeach a witness who is not the . i. Though the matter is not entirely settled, most courts probably will construe the phrase to refer just to crimes involving lying, like perjury or fraud, as they had under the previous language of the rule. ii. If evidence of petty theft prob not b/c dishonesty is not one of elements to convict someone for it. Same if it were robbery, a felony. But you could use this if it was to impeach s alibi witness, for example. e. Rule only requires that the crime be punishable by imprisonement in excess of 1 year, not that actual jail time was served. 2. Luce v. United States - was prosecuted for drug crimes. He made a pretrial motion requesting a ruling that, in the event he testified in his own defense, evidence of his prior conviction for a drug offense would not be admissible to impeach. didnt testify & was convicted. appealed. Supreme Court held that a must testify and be impeached to preserve for appeal the issue under Rule 609(a). Unless the actually testified, the trial court could not properly balance unfair prejudice against probative value, because striking that balance required hearing the testimony to be impeached and considering the impeaching evidence in context. a. This is only an issue when the court has to balance with prejudicial effect. If purely a legal issue, issue will be preserved for appeal & court doesnt have to weight factors in context.. For example, if prior conviction was for a misdemeanor of a crime of violence, then would not be admissible anyway. Rule 610: Religious Beliefs or Opinions 1. Rationale: to protect First Amendment values by excluding evidence of a witnesss religious beliefs, or lack thereof, for the purpose of inducing the jury to draw some inference about the witnesss character. 2. Examples: a. Pros for tax fraud. s accountant is a witness & testifies followed the IRS code. Pros offers evidence that witness accountant is a member of a religious organization that believes in animal sacrifice and worships a golden calf. Clearly not admissible. The evidence in question is likely to offend the sensibilities of mainstream religious believers on the jury and, thus, cause unfair prejudice. i. However, if evidence is that the accountant is a member of a religious organization that believes is the messiah, this relates to credibility in that it reveals the witness has a bias in favor of . Rule 610 is not aimed at excluding evidence of a witness religious belief when it is probative of bias. Still might be prejudicial, so court has discretion under Rule 403 to exclude the evidence if its probative value for purposes of bias is substantially outweighed by these aspects of unfair prejudice. Bias, Motive, And Interest 1. No specific rule governs this method of impeachment; but CL principles are applicable. 2. United States v. Abel - charged with bank robbery. An alleged accomplice testified for the prosecution. then called a witness to impeach the accomplice. That witness testified that the accomplice said he would falsely implicate the to gain favor with the prosecutors. The pros then recalled the accomplice to impeach the defense witness. The accomplice testified that they were all members of a secret society that required its members to lie, cheat, and steal to protect each other. The relevant fact here is that the defense witness is biased in favor of because they belong to the same gang. The Supreme Court says that the evidence is

admissible to prove this b/c no rule limits the admissibility of extrinsic evidence to impeach for bias. b. Impeachment By Contradiction i. A witnesss credibility is called into question by evidence that shows something the witness testified to is not correct. This permits the inference that the witness either was mistaken or lied. And if the witness was mistaken or lied about that matter, it is possible that the witness was mistaken or lied about other matters. Either way, the witnesss credibility is undermined. ii. There is no rule governing this method of impeachment. The common law provides that extrinsic evidence is inadmissible to contradict a witness on a collateral matter. 1. Evidence goes to a collateral matter if it tells us nothing about the issues in the case and says nothing about the credibility of the witness beyond showing the contradiction. 2. Fed courts tend to reach the same result by applying Rule 403. a. Extrinsic evidence that tends to impeach a witness by contradiction on a collateral matter is of very little value and consumes too much time 3. Notes: a. Impeaching the witnesss opportunity to observe is not collateral. b. CL - the impeaching party was required to inform the witness of the time, place, and people present when the prior statement was made before offering extrinsic evidence of the statement. Rule 613 merely requires that the witness be given a chance to explain or deny the statement. The rule does not establish an order in which this must be done. iii. Prior Inconsistent Statements of Witnesses 1. This is impeachment through self-contradiction. The evidence undermines credibility because it suggests the witness is either confused or has lied in one of her statements. If she has done so, she might have been confused or have lied about other matters. a. This can raise a hearsay issue if offered not just to impeach but also to prove the truth of what is asserted. b. When offered solely to impeach, the evidence is not being offered to prove the truth of what is asserted but, rather, only to show that the inconsistent statement was made. But because the jury might still use the evidence to draw inferences about the facts asserted, the evidence raises an issue under Rule 403: c. If it is offered for substantive purposes, Rule 801(d)(1)(A) makes a prior inconsistent statement not hearsay if it was given under oath at a trial, d. Rule 613 establishes foundational requirements for impeachment by prior inconsistent statement. 2. Prior inconsistent statements are admissible either substantively or to impeach the witnesss credibility as long as the procedural requirements of 770 are followed. a. Section 770 states that [u]nless the interests of justice otherwise require, extrinsic evidence of [a witnesss prior inconsistent statement] shall be excluded unless: i. (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or ii. (b) The witness has not been excused from giving further testimony in the action. 3. Prior consistent statements that do not satisfy the requirements of Rule 801(d)(1)(B) (to rebut) are almost certainly not admissible solely to support credibility. They carry little value for that purpose, and the chance that the jury will consider the prior statement only for its bearing on Witnesss credibility is very slim. II.


a. Introduction i. It is the jurys job to decide what the evidence means by drawing inferences from the evidence. This suggests that it is usually improper for a witness to draw inferences from the facts because such testimony usurps the role of the jury. But we make exceptions when witness opinion would help the jury draw its own conclusions.


The most obvious example occurs when the witness has some special experience or knowledge that permits her to draw inferences that jurors lacking such background might not be able to infer.

b. Rule 701: Lay Opinion i. Elements: 1. Lay opinion must be rationally based on the witnesss perception. a. A witnesss opinion that uses drugs b/c she has tattoos & piercings is not rationally based on her perception. 2. The lay opinion must be helpful to the trier of fact. a. A bare opinion is not helpful; jury must also hear the basis for a witnesss opinion. So, a witness who says, in my opinion, she is not a good mother, this is not helpful. ii. Traditionally, lay opinion has been admissible on a number of subjects including: 1. the speed of a vehicle, 2. sanity (he was acting crazy), 3. intoxication (I think he was drunk), 4. emotions (he looked angry), 5. and the value of the witnesss property. iii. Examples: 1. Car accident. A witness who is not an expert testifies, The car went by me at about 80 miles per hour. I got a good look at it. This lay opinion is based on the witnesss perception b/c the witness saw the car. It is rationally based because the witness says she had sufficient perception (a good look) to justify the opinion. This opinion is helpful to the jury because this is the sort of perception that the witness could not describe adequately if she were required to limit her testimony to the matters she perceived. a. If she was so limited, her testimony would sound something like the following: I saw a cloud of dust. There was a whooshing sound as the car went by. It was a blur. I smelled exhaust. 2. Divorce action; father wants custody. Neighbor offers to testify that, in her opinion, the mother frequently had many male guests stay overnight. The opinion is based on the fact that the neighbor saw cars other than those owned by the mother parked in the mothers driveway at night when the neighbor went to bed and would see the same cars in the driveway in the morning. The opinion is not helpful b/c it adds nothing to that factual basis that the jury could not infer for itself. Also, maybe not rationally based on perception witness doesnt claim to have seem men in the cars. c. Rule 702: Expert Opinion i. Diff from lay opinions - experts can base an opinion on matters other than those they perceive with their senses. ii. Elements: 1. EXPERT OPINION MUST ASSIST THE JURY, a. Assisting the jury means using their expert knowledge that jury doesnt possess to make an opinion; an expert does not assist a jury by telling them something that the jury could infer themselves. i. Ex: expert testifies that b/c bloody footprints led from murder scene to s apt, then must be guilty not helpful. If the expert was analyzing footprints & found same show size as , then helpful, /c jury prob doesnt have the knowledge to know how to analyze footprints. b. Expert does not assist the jury by merely telling them what to believe; an expert must give information derived from experts knowledge for jury to make determinations. i. Ex: expert, a psychiatrist, testifies, based on his observations, victim is suffering from psychosis & is not telling the truth not helpful. Testifying that she suffers from

psychosis & that people who have this condition often cannot distinguish between fantasy and reality this is helpful. 2. EXPERT WITNESS MUST BE QUALIFIED, a. Foundation: i. Proponent will normally tender evidence concerning the qualifications of the expert witness, but dont have to if opponent doesnt object. Prob want to though to impress the jury. ii. Then counsel either asks for opinion, or waits for court to rule admission of evidence. Opponent may be allowed to conduct voir dire to poke holes in experts qualifications. iii. If issue of qualification, court decides under 104(a) whether the expert is qualified. b. A witness can be qualified by experience alone to testify as an expert even where the witness has no formal training or academic credentials. i. So, a plumber who only finished the 6th grade, but has 20yrs experience in plumbing, is qualified on matters re: plumbing. c. The opinion has is limited to the area of witnesss expertise. i. Thus, an experienced cosmetic surgeon is not qualified to testify that med mal caused to suffer $100k lost income from bad procedure. d. An interpreter is subject to the same requirements of qualification as an expert. i. So when a witness does not speak English, an officer cannot just interpret there, but must first be established that officer is an expert. 3. THE EXPERT OPINION MUST BE SUPPORTED BY A PROPER FACTUAL BASIS; and 4. THE EXPERT OPINION MUST BE BASED ON RELIABLE PRINCIPLES THAT WERE RELIABLY APPLIED TO THE FACTS. a. Ex: murder pros. call expert witness, an astrologer, to testify that based on the alignment of the stars, couldnt have done it. This opinion is based on an invalid/unproven assumption. b. Frye Standard (1926) to be admissible, scientific evidence must be based on principles that had achieved general acceptance in the relevant field. i. Important b/c you can find experts to opine on just about anything. This leads to admissibility of junk science which is not reliable. ii. NY courts still use the Frye standard. Why not using Daubert? B/c not Courts role to determine the reliability of new, complex, scientific techniques. iii. Burden is on the proponent to demonstrate the generally accepted reliability of the proffered testimony. c. Daubert Standard - abolished the Frye standard, using a more flexible, but complex, standard. i. Daubert v. Merrell Dow Pharmaceuticals, Inc., - s were children born with birth defects. During pregnancy, their mothers had taken a certain drug, manufactured by . s offered expert testimony that the drug could cause birth defects. This testimony was based on laboratory studies and on evidence that the drug caused birth defects in animals, and re-analyzing published studies, finding a link. s objected to the admissibility of the expert evidence, noting that the vast majority of tests on humans demonstrated no causal connection to birth defects. 1. STANDARD: While trial courts have flexibility in determining whether such evidence is reliable, at least four questions are pertinent to making that determination: 2. Is the evidence the product of a theory or technique that has been tested? 3. Has the theory or technique been subjected to peer review and publication? 4. Is evidence produced by this theory or technique subject to a known rate of error and other standards of reliability?

5. Does the theory or technique enjoy a reasonable level of acceptance within the relevant field? d. Kumho Tire 6 yrs after Daubert, Supreme Court decided that the general requirement of reliability applies to all expert testimony, not just expert scientific evidence. e. Problems applying the Daubert/Kumho Standard i. United States v. Llera Plaza s were indicted on drug and murder charges. They moved to suppress the testimony of FBI fingerprint experts linking them to the crimes, arguing that such evidence failed to satisfy the requirements of Daubert/Kumho. 1. Problem was that in applying the Daubert/Kumho standard, this evidence was excluded, but it was especially compelling, had been offered in many cases, and had been admitted almost as a matter of course in thousands of cases. Court ending up admitting the evidence. ii. One of the biggest problems in applying Daubert/Kumho is determining how to evaluate the reliability of the expert evidence in question. This is a problem because the judges who must make the reliability determinations are trained in the law, not in the subjects to which the evidence relates. Frye avoided this problem by permitting courts to rely on what experts in the field think is reliable. III.

a. Rule 501: General Rule - the privilege of a witness, person, etc., shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. i. Purpose: Desire to protect an interest or relationship. ii. Since the effect of a privilege is to suppress the truth, a privilege should be recognized only if: 1. the interest or relationship is of outstanding importance, and 2. would undoubtedly be harmed by denying the protection of privilege. iii. A communication made in confidence has been recognized as privileged only if fostering of the relationship is considered important to society. The injury to such relationship that would result from disclosure exceeds the benefit gained from a fully informed determination of litigation. iv. Privileges Federal Courts 1. Lawyer/Client 2. Spousal testimonial 3. Spousal confidential communication 4. Psychotherapist/Patient a. Note that Physician/Patient & Accountant/Client not recognized. 5. Clergyman/Penitent 6. Journalists a. Journalists possess qualified privilege to refuse to testify about their news sources, or to produce their unpublished work product. b. Reason: societys interest in a free and accurate flow of information. c. Factors for court to weigh: i. The materiality or necessity to the case of the information allegedly privileged. ii. The attempts of the side seeking the information to obtain it from sources orther than the journalist. iii. Whether the information sought is in fact available from other sources. d. Qualified Privileges i. Trade Secrets ii. Secrets of State iii. Informers Identity v. Who Owns The Privilege



1. Privileges are invoked or waived by their owners, who may or may not be parties to the litigation. 2. The party asserting the privilege has burden of showing facts which give rise to privilege. Mere assertion of privilege is not enough. Attorney/Client Privilege 1. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. 2. Two part analysis: a. Was there an attorney client relationship? i. Communication made to attys friend relating to business w/o contemplation of legal advice does not create the relationship. b. Was communication confidential? i. A communication is confidential if not intended to be disclosed to third persons other than representatives of the lawyers to whom disclosure is in furtherance of the rendition of professional legal services to the client or to those reasonably necessary for the transmission of the communication. ii. The privilege also includes communications by the lawyer or the lawyers representatives to the client if the communication constitutes legal advice, or tends directly or indirectly to reveal the substance of a clients confidence. Reps are secretaries, file clerks, etc., and can also include experts employed to assist attys rendering legal services. Does not include experts hired to give expert testimony as witnesses. iii. If the communication is made in the presence of a third person who is neither agent of attorney nor the client, or where presence is not reasonably necessary for the communication, or if the client intends that the attorney disclose the information to a third party, the privilege does not apply. 1. Disclosure of the communication is permitted, not because the privilege has been waived, but because the communication, not having been made in confidence, was not privileged. 2. If two or more persons consult an attorney in regard to a matter of common interest to them, nothing said by the parties or the attorney is deemed confidential in a later lawsuit between the parties or their personal representatives. 3. Consultation for unlawful purpose is not privileged. Attorney may not legitimately give advice that will assist a client to commit a crime. 4. Confidential communications extends to documents exchanged between lawyer and client. a. Created for purpose of facilitating the rendition of professional legal services, such as a letter, is privileged in the hands of attorney. b. Pre-existing, the document by virtue of being forwarded to lawyer, does not acquire privileged status. Husband/Wife Privilege 1. In the interests of marital harmony the testifying spouse has a privilege, in criminal not civil cases, to refuse to testify against the other. 2. The holder of the privilege is solely the testifying spouse. The non-testifying spouse may not assert the privilege. So if wife wants to testify against husband, husband cant stop her on basis of privilege only wife can refuse b/c of the privilege. 3. Scope of privilege extends only to the right to refuse to answer questions which tend to incriminate non-testifying spouse. Questions which do not, do not jeopardize the marriage. 4. Privilege bars testimony concerning intra-spousal confidential expressions made during the marital relationship.


a. Must be a valid marriage. Ceases to exist if parties do not remain married. No privilege if no marriage. Does not apply between permanently separated spouses. i. Note: Confidential communications made during the marriage survives termination of marriage by, annulment, divorce or death. Waiver of Privileges 1. Holder of confidential communication privilege waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of matter or communication. a. Voluntary Disclosure includes: i. Written consent to psychiatrist to release records. ii. Calling and eliciting testimony of lawyer at trial. iii. Repeating to third party the content of privileged communication by the holder. iv. Failure to assert privilege at trial b. Once confidentiality is destroyed through voluntary disclosure, it cannot be restored by subsequent claim of privilege. c. Voluntary disclosure waives the privilege with respect to all other communications on the same subject matter. Waiver does not occur if voluntary disclosure is itself a privileged communication. d. No waiver where disclosure of privileged confidential communication was either erroneously compelled or made without opportunity to claim privilege. i. If wrongfully judicially compelled, no waiver occurs. e. A third person may not testify against an accused in a criminal case to confidential communication disclosed to him by a spouse of accused. i. Same rule if lawyer, psychiatrist or clergyman makes unauthorized disclosure.