Evidence Outline

Davis 2011
Thompson
Evidence: Fisher Second Edition
FEDERAL RULE OF EVIDENCE
--Most of the states, 42 by last count, have adopted F.R.E. as their own state rules of evidence
--New rules, not much substantive changed, to be formally confirmed by the end of our course
IMPORTANCE OF THE JURY
A.
INQUIRY INTO THE VALIDITY OF VERDICT OR INDICTMENT
606(B
)

UPON AN INQUIRY INTO THE VALIDITY OF A VERDICT/INDICTMENT, A JUROR MAY NOT TESTIFY TO ANY MATTER
OR STATEMENT OCCURRING DURING THE COURSE OF THE JURYS DELIBERATIONS OR TO THE EFFECT OF
ANYTHING UPON THAT OR ANY OTHER JURORS MIND OR EMOTIONS AS INFLUENCING THE JUROR TO ASSENT
TO OR DISSENT FROM THE VERDICT OR INDICTMENT OR CONCERNING THE JURORS MENTAL PROCESSES IN
CONNECTION THEREWITH.
BUT A JUROR MAY TESTIFY ABOUT (1) WHETHER EXTRANEOUS PREJUDICIAL INFORMATION WAS IMPROPERLY
BROUGHT TO THE JURYS ATTENTION (ANY MATTER OR STATEMENT OCCURRING DURING DELIBERATIONS), (2)
WHETHER ANY OUTSIDE INFLUENCE WAS IMPROPERLY BROUGHT TO BEAR UPON ANY JUROR, (BRIBES/THREATS)
(EFFECT ON MIND OR EMOTIONS OF JUROR AS IT RELATES TO HER ASSENT OR DISSENT FROM THE VERDICT) OR (3)
WHETHER THERE WAS A MISTAKE IN ENTERING THE VERDICT ONTO THE VERDICT FORM. A JURORS AFFIDAVIT OR
EVIDENCE OF ANY STATEMENT BY THE JUROR MAY NOT BE RECEIVED ON A MATTER ABOUT WHICH THE JUROR
WOULD BE PRECLUDED FROM TESTIFYING.

i.

Purpose of protecting jury deliberations: (1) Enhance finality of judgments

avoid second-guessing or collateral attacks against the verdict; (2) Protect
jurors against harassment by lawyers who are seeking some basis of appeal; (3)
Enable jurors to deliberate without any fears this is their thing; & (4) Protect
jurors and jury system to help preserve community trust in the legitimacy of
verdicts.
ii.
Tanner v. U.S. (1987) stands for the systems unwillingness to look past the
jurys verdict to expose whatever flaws in reasoning or understanding might lie behind the curtain of the
deliberation room.
- After conviction, D wanted to offer evidence of juror misconduct including boozing on the lunch breaks, taking
and selling drugs, and sleeping during the trial. Court denies his motion. **highly protective of jury system; why
the emphasis is on rules of evidence.
-- BECAUSE WE APPARENTLY DO NOT TRUST JURIES TO CAST OFF AND DISREGARD MEANINGLESS, MISLEADING,
AND UNRELIABLE EVIDENCE, WE SCREEN OUT SUCH EVIDENCE BEFORE JURIES EVEN HEAR IT. THIS SCREENING
PROCESS/QUALITY CONTROL IS THE REALM OF EVIDENCE LAW.
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UNIT 1 RELEVANCE CHAPTER 1 GENERAL PRINCIPLES OF RELEVANCE
I.
a.

RELEVANCY is a relation between an item of evidence and a proposition sought to be proved

MATERIAL AND PROBATIVE
401

"RELEVANT EVIDENCE" MEANS 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. (ANYTHING THAT AFFECTS HOW JURORS FEEL ABOUT THE VERDICT; JUST SOME EFFECT, IT
DOESNT HAVE TO PROVE THE ISSUE, JUST A TENDENCY TO AFFECT THE CONCLUSION)

402

403

1.

ALL RELEVANT EVIDENCE IS ADMISSIBLE, EXCEPT AS OTHERWISE PROVIDED BY THE CONSTITUTION, BY ACT OF
CONGRESS, BY THESE RULES, OR BY OTHER SUPREME COURT RULES. EVIDENCE THAT IS NOT RELEVANT IS NOT
ADMISSIBLE. (EVIDENCE IS NOT ADMISSIBLE IF NOT RELEVANT - IF THERE IS NOT A DISPUTED ISSUE, THEN IT IS NOT
RELEVANT).
ALTHOUGH RELEVANT, EVIDENCE MAY BE EXCLUDED IF ITS PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED
BY THE DANGER OF UNFAIR PREJUDICE, CONFUSION OF THE ISSUES, OR MISLEADING THE JURY, OR BY
CONSIDERATIONS OF UNDUE DELAY, WASTE OF TIME, OR NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE.

Material - bear on a fact of consequence (issues at stake in the proceeding, usually substantive law)
1.4 D is charged with having a weapon in her possession as a convicted felon; D wants to offer evidence that
she didnt know that it was a felony. Statute doesnt include mens rea, so this evidence would be probative, but
not material since it goes to no part of the statute.
1.5 D wants to offer evidence of intoxication to eliminate the knowingly and purposely part of his charges.
Voluntary intoxication cannot be taken into consideration to determine a mental state of a criminal offense. Thus,
it was a 5-4 decision concluding that this was not material.
James - D testified she was afraid of victim (bf) bc he told her stories of awful
crimes. Her credibility and self-defense claim could be directly corroborated
through docs proving he did commit crimes. *Davis: tendency of human
behavior when people tell you they have done this or that, especially the
more gripping or imperative these things may sound, it is more likely that is
has actually been done. Crux of her defense was credibility and the
evidence would support it so on appeal denial of admission revd.
Probative - tendency to make the existence of that fact more or less probable; lenient test doesnt need to be
conclusive, just some tendency to make a fact probable. **If the proposition itself is one provable in the case, then
the offered evidence has probative value in the case.
1.1 Man arrested for murder; wife comes in: Murder? Wheres the body? Show me the body.
At that time police had no body. Abnormal behavior might be indicative of what she knows; could make guilt
more probable. *It doesnt have to be the wall; it can be just a brick.
1.2 - D was in a secret prison group with a creed that required members to lie & kill for each
other. This kind of group would go to the witnesss character and establish his truthfulness.
1.3 Lie detector tests are inadmissible generally. Here results were excluded, but D wanted to
put on evidence that he wasnt afraid to take the test. It may indicate innocence, but it could show confidence in
ability to fool it or knowledge it wouldnt be allowed as evidence. 401 says any tendency, so this might come
in, but there are some problems with it that we will see later.
Knapp v. State - Just as Ds sources here were more likely to say the man was clubbed to death if
he was, so James bf was more likely to say he had robbed an man at knifepoint if he really did. D claimed selfdefense bc he had heard victim fatally clubbed an old man. State proved the stories D heard were not true (old
man died of senility with no bruises or injuries). If no basis for the story, the truth of Ds claim tended to be
less probable. State should be able to confront the story with other evidence when he, cunningly perhaps,
testified he could not remember the source. Somewhere bw fact & testimony was mistruth and if D is unable to
point to the source his testimony, at the very least, the story is less probable.

2.

Limiting admissibility: If evidence is relevant to one issue and forbidden to be consider with respect to another
2 possible solutions: (1) keep it out; or (2) let it in with a jury limiting instruction Rule 105.

3.

403 Filter through which all evidence must pass - Relevant evidence may be excluded if it (1) poses
problems (confusing the jury, undue delay, waste of time, cumulative evidence) & that problem will (2)

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substantially outweigh its probative value. **Dont use all objections at once. First, not relevant. Denied-then,
argue under 403 how/why the evidence is unfair
B.

CONDITIONAL RELEVANCE - there exists a chain of inferences leading from the contested fact to the conclusion
of Ds guilt & it is severed if conditional fact(s) are not established
104(A)

104(B)

(A) PRELIMINARY QUESTIONS CONCERNING THE QUALIFICATION OF A PERSON TO BE A WITNESS, THE EXISTENCE
OF A PRIVILEGE, OR THE ADMISSIBILITY OF 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.
(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. **(JUDGE DECIDES IF THERE IS (OR WILL BE) EVIDENCE IN THE RECORD
FROM WHICH AN RPP COULD CONCLUDE THAT FACT EXISTS)
NOTE: 104(B) IS A LOW THRESHOLD; REQUIRES THAT THE PROPONENT INTRODUCE SUFFICIENT EVIDENCE THAT
THE JURY COULD REASONABLY FIND THE CONDITIONAL FACT BY A PREPONDERANCE OF THE EVIDENCE. SEE
HUDDLESTON
- CONDITIONAL RELEVANCE STANDARD IS TECHNICALLY HIGHER THAN BARE RELEVANCE STANDARD, BUT NOT
MUCH HIGHER.

i. 1.7 Husband accused of murdering wife; theory is he killed her because she was going to tell her son that he was
not his father. Conditional fact he knew he wasnt the father & he knew she was going to tell; prosecutor
argued that the words her son and if she was going to tell the son she would have told him first. Evidence came
in, but its questionable if the conditional fact was sufficiently established.
ii. Cox v. State - court may admit evidence after a preliminary determination if there is sufficient evidence to
support a finding that the conditional fact exists. State theorized that D killed victim bc he testified against Ds
close friend in another case. Conditional fact D had to know that the deceased testified against his friend.
Evidence that D and friend were close, D was at friends moms house a lot, & other witness testimony was
sufficient support that D knew of the deceaseds testimony.
c.
1.

PROBATIVENESS V. RISK OF UNFAIR PREJUDICE

ADMISSIBILITY OF PHOTOGRAPHS AND VIDEOS
i. State v. Bocharski (2001) Autopsy disclosed that victim died from 16 head stab wounds. No murder weapon
and Ds undated fingerprints were found on the door. D argues there was no expert testimony about entry or
angle of wounds just a graphic photo. Court says photos were unlikely to be offered for any reason other
than to inflame the jury, but no reversal bc court said it was harmless error & did not influence the jury
verdicts: (1) felony murder conviction would have been unlikely if jury was inflamed or impassioned by
photos; & (2) trial judge observed jurys reactions they took photos in stride. **appellate courts usually
dont reverse on photos trial court discretion
Concurrence Murder is a grisly business and is likely to involve grisly photographs. Absent egregious error
we should not disturb rule 403 weighing. We should not be paternalistic with our jurors.
ii. Clip D charged with killing infant; State theorizes it was a revenge killing when infants mother turned down
Ds marriage proposal. Photo of infant in shallow grave. Prosecutor says it shows Ds callous attitude toward
infant (mindset of accused) and goes directly to revenge killing theory. D says its prejudicial and doesnt add
anything that cant be testified to. Judge agrees - it doesnt take a picture to describe this scenario not
allowed in.
iii. Problem 1.8 issue in case was if Ds rifle was rapid-fire. Ds experts found it only fired one shot, but state
experts found the opposite. State photo about a possible malfunction photo showed gun clean; D argued bc
photo had other guns in it & it didnt show the interior of the gun, it was (1) prejudicial - it would make the
jury think D was some kind of gun-owning nut and (2) unnecessary. 9th Circuit reversed allowance of photo bc
of prejudicial effect photo reveals nothing about the inside of the gun & all of the other guns belonged
to Ds roommate, not D.
iv. Commonwealth v. Serge (2006) - CGA properly admitted - it was not dramatic and it adequately served as
demonstrative evidence old days - chalk boards, technology now allows CGAs; probative value is greater
than any prejudice. States Theory: D staged self defense & they want to show how w a Computer Generated

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Animation as demonstrative evidence (75 secs; no voice over; shot trajectory). CGA allowed with limiting
instruction - animation is only as good as underlying testimony & data. Like all evidence you may accept or
reject it. (1) CGA will assist trier of fact by combining expert testimony into an easily understandable
presentation; (2) no unfair prejudice bc it omits violence, blood, facial expressions, etc.; (3) right of the
prosecutor to prove their case in a convincing way; (4) limiting instruction solves any unfairness; (5) D can ask
for $$ to make their own CGA (if denied, but it can be raised on appeal.) *Note D claimed self-defense, so he
admitted pulling the trigger, but if he didnt it might be prejudicial that the shooter in CGA resembled him.
v. United States v. James: Judge Kleinfeld's dissent Evidence should be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice & rule 403 does not limit unfair prejudice to
one side. When a trial judge makes a sensible decision to admit or exclude evidence, well within the range of
what is ordinary, for a sensible reason, we should let it alone. Dissent agrees the evidence was relevant & it
would not have been an abuse of discretion to allow it, BUT admissibility does not suffice to make exclusion
an abuse of discretion. He thinks the evidence was prejudicial to the PROSECUTION bc docs could lead jury
to say victim was a bad manhe deserved it.
2.

Evidence of Flight - Flight is usually admitted as evidence of guilt (fleeing can support an inference of guilt
timing is important), but flight could also show fear of wrongful conviction or other reasons not due to guilt. **D
can probably admit evidence that he could have fled during police investigation, but did NOT, in order to prove his
innocence, but its iffy and can be impeached by the prosecution.
i. U.S. v. Myers (1978) - Flight is circumstantial evidence showing a potential admission by conduct. Guilt
depends upon degree of confidence with which Judge Clarks 4 inferences can be drawn: (1) Ds behavior
before flight; (2) flight to consciousness of guilt (can we infer some consciousness of guilt from flight); (3) is
there a link between consciousness of guilt and the crime charged; and (4) consciousness of guilt to actual guilt
of crime charged (not another crime). Criticism: flight is only marginally probative as to the ultimate issue of
guilt or innocence & there are a number of innocent reasons why a person may leave a jurisdiction. Counter:
if there is an innocent reason then D can present it.
- Error to admit evidence of flight without support in the record. Even assuming he did flee, the 3rd inference
cannot be drawn because it is known he committed another robbery so it cant be ascertained that he fled
solely because he felt guilty about this robbery. *Note the more remote in time the alleged flight is from the
commission or accusation of an offense, the greater the likelihood that it resulted from something other than
feelings of guilt concerning that offense.
ii. Problem 1.9- Accused sees a woman who has been murdered and he flees; state wants to offer this as evidence
of guilt in reference to her murder. He testifies he fled bc he was afraid hed be arrested since he had
committed a crime previously for which he had served time. Problem: his innocent reason of fear required him
to explain and bring up prior arrests which prejudiced him in front of the jury
o Prosecution: the prior conviction (unarmed robbery) was 12 years ago, this is not prejudicial &
evidence of flight is generally relevant and admissible, so here if accused wants to set forth his alleged
reason for leaving let the jury decide. *Side Note: murder victim was his wifes aunt; abnormal
behavior in finding a loved one (non-stranger) dead.
o Defense: Any reasonable person in similar circumstances would almost certainly conclude that the
victim had met with something other than an accident. As a convicted felon, he knew that he would
immediately be a suspect and that his prior record would seriously impair his credibility.
iii. "Thelma and Louise" Clip they had robbed a convenience store, then picked up Brad Pitt he sees police
officers up ahead and then they go into an oil field and go around the police.

3.

PROBABILITY EVIDENCE - probabilistic evidence poses a risk of unfair

prejudice when it is wrong, when it rests on either false data or mistaken
mathematical principles, & when flaws cannot readily be idd.
i. People v. Collins (1968) - Lady robbed by a blonde ponytail woman and
neighbor saw her get into a yellow car driven by a black man with a
mustache. Prosecutor uses mathematical probability evidence; expert
testified there was a 1 in 12 million chance that the Ds were innocent.
Yellow car (1/10); man w mustache (1/4); girl w ponytail (1/10); blonde
hair (1/3); interracial couple (1/1000) --- numbers derived from his

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secretaries guesses and spoon fed to the witness. In closing, he tells the jurors they could make up their own
probabilities. Introducing mathematical probability statistics requires an adequate foundation in
evidence and adequate proof of statistical independence. Appeals court reversed bc evidence had no
adequate evidentiary foundation or independent statistical proof, thus admission was prejudicial error. *Not a
complete denial of probabilities, but reasons that math shouldnt cast a spell. In condemning math done
badly, the justices did not reject the utility of math done well.
Note: Today DNA evidence counters any claim that Collins forever banished the sorcerer mathematics from
criminal courtrooms. Not to say DNA results are right, human error can distort DNA analysis, but such risks
typically do not justify excluding DNA test results because jurors understand the risks and can assess them.
**Turns on the soundness of the math, accuracy of underlying facts, and ability of jurors to assess flaws
beyond math.
ii. Presumed Innocent Clip DA charged with murder when accused he stormed out; Prosecutor: Did you
follow him? Witness: Yes. P: You said- you did it, didnt you, did he deny that? W: No, he said- right, right,
youre always right. Is this an admission of guilt? Defense: taken out of context this is prejudicial; voice of
sarcasm in a strained relationship. I did it is probative, but thats not what was said here. Prosecution: he
admitted it; his gut reaction was to agree instead of defend
4.

STIPULATIONS- agreement bw parties read to the jury stating a particular fact/piece of evidence is agreed to be
true, includes witness statements and evidence foundations. A stipulation is not as powerful as having a witness
actually testify. Concerns: Jurors might get the impression that they are not receiving the whole story and might let
their imaginations fill in the missing gaps
i. United States v. Jackson- Prosecution is entitled to prove its case by evidence of its own choice; a crim D may
not stipulate/admit his way out of full evidentiary force governments case chooses to present it
- D accused of NY gunpoint robbery; found in GA with guns & arrested for using a false identity. He wants to
stipulate that he was in another state & used a false name. BUT the prosecution says the whole story is
relevant bc it tends to make a fact more probable and it is probative of the consciousness of guilt in the earlier
robbery. D argues unfair prejudice. Parties can stipulate and achieve the same purpose. The conditions
imposed here are justifiable.
ii. Old Chief v. United States (1997) Appellate courts usually defer to trial courts rulings based on 403, but
this case is an exception. It shows how slight probative value may have to be for an appellate court to rule it is
less than the risk of unfair prejudice. Court held that a full description of Ds prior offense had no probative
value bc D conceded he was a felon. *CLOSE decision
- D arrested for possession of a firearm as a convicted felon previously convicted of assault causing serious
injury (makes him look bad); hes willing to stipulate previous conviction, which would meet the crime
element. Prosecution objected: D cannot dictate their evidence. Lower courts agreed (403 - MAY be excluded).
BUT Supreme Court reversed (5-4 decision) - showing nature of D's last felony has little probative value, all
thats needed is a prior conviction AND danger of prejudicial effects is very high
- Normally prosecution can choose their own way to present evidence and make their case with testimony and
tangible things that not only satisfy the formal definition of an offense, but tell a colorful story with descriptive
richness.
(1) 401 - the specific conviction was a step on one evidentiary route to the ultimate fact, placing D in a
particular sub-class of offenders. Thus conviction was relevant AND alternative proofs do not render it
irrelevant.
(2) 403 - stipulations rulings are decided on the basis of waste of time and undue prejudice considerations.
Policy: character weighs heavily w the jury (evidence of prior, unrelated crimes may lead a juror to think that
D already has a criminal record, so an erroneous conviction would not be so serious)
Dissent (Scalia): prior conviction is an element of charge, jury should hear all the facts of Ds prior crime;
disagreement concerns policy allowing a court to decide the method of the case rather than each side deciding
on their own based on: (1) Testimony tells story better; (2) Abstract account cant establish what an evidentiary
account can; (3) Desire to satisfy the jurors expectations
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UNIT 1 RELEVANCE CHAPTER 2 THE SPECIALIZED RELEVANCE RULES
- Per se rules because these are circumstances where specific types of evidence offered are per se prejudicial or per se outweighed by
probative value. **There are exceptions, but it is not common for this type of evidence to ever be admitted.

I.

FRE 407
TEXT
BARS SUBSEQUENT REMEDIAL
MEASURES TO PROVE NEGLIGENCE,
CULPABLE CONDUCT, PRODUCT DEFECT,
OR NEED FOR WARNING, BUT TO PROVE
OTHER THINGS SUCH AS OWNERSHIP,
CONTROL, OR FEASIBILITY, IF
CONTROVERTED, OR TO IMPEACH

POLICY
(1) EVIDENCE OF REMEDY IS OFTEN WEAK EVIDENCE OF NEGLIGENCE BECAUSE
WE CANNOT SAY THAT BECAUSE THE WORLD GETS WISER AS IT GETS OLDER,
THEREFORE IT WAS FOOLISH BEFORE.
BUT THE INFERENCE OF NEGLIGENCE IS A POSSIBLE ONE BECAUSE REPAIR
TENDS TO SHOW CONSCIOUSNESS THAT THE SITUATION CALLED FOR ADDITIOANL
SAFETY PRECAUTIONS

(2) TO ENCOURAGE REMEDIES = THE MORE IMPRESSIVE GROUND FOR EXCLUSION

ADMISSIBILITY CHART:
FRE 401 - IF EVIDENCE HAS ANY TENDENCY TO MAKE A MATERIAL FACT MORE OR LESS PROBABLE FRE 402 - THEN IT IS ADMISSBLE UNLESS OTHERWISE BARRED UNDER A SPECIALIZED RULE
I.E.

407 - IF EVIDENCE IS OF SUBSEQUENT REMEDY-

- & IS OFFERED TO PROVE NEGLIGENCE, CULPABLE CONDUCT,

PRODUCT DEFECT, OR WARNING NEED -

-& IS OFFERED TO PROVE, UNCONTROVERTED FEASIBILIY

FRE 403 - IF PROBATIVE VALUE IS NOT SUBSTANTIALLY
OUTWEIGHED BY DANGER OF UNFAIR PREJUDICE

OR ELSE, IT MAY BE EXCLUDED

-& IF OTHERWISE ADMISSIBLE UNDER THE RULES
INADMISSIBLE
OR ELSE, INADMISSIBLE
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ADMISSIBLE

i. Problem 2.1 - Wolf Bite- wolf attacked dog; wolf owner put up fence; wolf attacked child --- both lawsuits
want to admit evidence of the fence
-Dog Lawsuit: the fence would not be admissible because it is a remedial measure of putting in fence after
previous escape cannot be admitted
-Child Lawsuit: since chaining happened before accident it would be admissible
ii. Tuer v. McDonald (1997) Man died because coagulant was discontinued in anticipation of surgery and not
restarted when surgery was delayed; After his death, the hospital changed this standard protocol. Change in
protocol not admitted because (1) no demonstration of feasibility there was no testimony that the change
wasnt possible or would not have made a difference (court adopted narrow interpretation whether it could
have been instituted/rejected broad interpretation whether the remedial measure possible) and (2) could not be
used to impeach because mere contradictory testimony is not enough *(if it were, then the exception would
swallow the rule). Policy: increase safety by removing disincentive to make repairs; these are not admissions, but
rather consistent behavior after an accident
iii. 2.2 Wood Chipper I (1995) Womans husband killed by a wood chipper; she sues machines maker; court
ruled that 407 barred P from offering evidence that D later modified the machine. BUT at trial Ds counsel talked
about the army ordering 30 machines like the one at issue in this case. This would give the jury the impression
that those same machines are still being used and are just fine, BUT the Corps didnt order the same machines
impeachment 407 exception. D opened the door, thus the judge allowed it so as not to leave a false impression
with the jury.
iv. 2.3: Wood Chipper - Ive said it once and Ive said it a thousand times, its the safest length chute you could
possibly put on the machine. This would also open the door for impeachment.

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v. Third Party Repairs: when measures are taken seems to apply to repairs by any party, BUT rules policy
gives no grounds for excluding third-party repairs since it likely wouldnt dissuade repairs because evidence
might be offered against someone else. Most courts follow this reasoning and admit the evidence. BUT how can
another partys later repair be relevant to this Ds negligence? Thus, some courts find that although evidence is
not barred by 407, it has little probative force to get past 403.
vi. Strict Liability: 1997 amendment to 407 made clear the rule applies in SL defective product suits bc even large
scale product makers might be deterred from making repairs if evidence could be used against them.
II.

408 & 409: Compromise Offers and Payment of Medical Expenses

RUL

TEXT

POLICY

BARS COMPROMISE/ATTEMPT TO COMPROMISE A

DISPUTED CLAIM AND STATEMENTS/ CONDUCT IN

(1) COMPROMISE MAY BE MOTIVATED BY A DESIRE FOR PEACE

408

NEGOTIATIONS TO PROVE LIABILITY FOR OR

INVALIDITY OF CLAIM, BUT NOT TO PROVE OTHER
THINGS E.G. WITNESS BIAS, LACK OF UNDUE DELAY,
OR OBSTRUCTION OF CRIMINAL INVESTIGATION

RATHER THAN FROM ANY CONCESSION OF WEAKNESS OF POSITION.

THIS IS ESPECIALLY TRUE IF THE SETTLEMENT AMOUNT IS SMALL
BUT STATEMENTS MADE DURING NEGOTIATIONS MAY MEAN MORE

(2) TO ENCOURAGE COMPROMISE = THE MORE CONSISTENTLY

IMPRESSIVE GROUND

EVIDENCE IS NOT ADMISSIBLE TO PROVE

LIABILITY OR TO IMPEACH... LAST PART WAS
ADDED TO HEAD OFF ATTEMPTS TO GET AROUND
THE RULE USING STATEMENTS MADE IN
SETTLEMENT NEGOTIATIONS FOR IMPEACHMENT
PURPOSES

409

BARS OFFER OR PAYMENT OF MEDICAL COSTS TO

PROVE LIABILITY

(1) OFFER IS USUALLY MADE FROM HUMANE IMPULSES

(2) ADMITTING EVIDENCE WOULD TEND TO DISCOURAGE
ASSISTANCE

Comparing Rules 408 and 409:

Diff.
Impt

Polic
y

COMMUNICATION IS ESSENTIAL IF COMPROMISES ARE TO BE EFFECTED, AND CONSEQUENTLY BROAD PROTECTION OF

STATEMENTS IS NEEDED. THIS IS NOT SO IN CASES OF PAYMENTS OR OFFERS OR PROMISES TO PAY MEDICAL EXPENSES,
WHERE FACTUAL STATEMENTS MAY BE EXPECTED TO BE INCIDENTAL IN NATURE.
IF TWO PEOPLE ARE IN AN ACCIDENT AND ONE SAYS, IM SORRY. I WILL PAY YOUR MEDICAL EXPENSES, WE DONT WANT
THAT TO BE USED AGAINST THEM, BUT IF THE STATEMENT SAYS, IM SO SORRY I RAN THAT RED LIGHT, I WANT TO TAKE
CARE OF YOUR MEDICAL EXPENSES.
IM SORRY I RAN THE RED LIGHT PRETTY MUCH AN ADMISSION OF GUILT
RULE 408 AIMS IN PART TO ENCOURAGE SETTLEMENT AND RULE 409 AIMS IN PART TO ENCOURAGE OFFERS TO ASSIST
(WHICH MAY AVOID A LATER LAWSUIT)
A PROTECTIVE RULE THAT EXCLUDED A DRIVERS WORDS OF APOLOGY WOULD PROBABLY HAVE LITTLE IMPACT ON
WHETHER SHE UTTERED THAT APOLOGY THUS ANY EXCESS PROTECTION IS A WINDFALL TO DRIVER AND DEPRIVES THE
JUSTICE SYSTEM OF EVIDENCE OF ADMISSION OF GUILT WITHOUT SERVING ANY PUBLIC GOAL WHEREAS LAWYERS ARE
WELL AWARE OF THE RISK OF CARELESS STATEMENTS AND WOULD ADVISE CLIENTS TO KEEP QUIET EVEN IF SILENCE
FRUSTRATED SUCCESSFUL NEGOTIATIONS

i.

The Verdict with Paul Newman Clip - D said it was an unfortunate accident; accident - unforeseen event, act,
or circumstance; lack of intention or necessity; event resulting from negligence or ignorance. 408 forbids
admission of settlement/negotiation statements to prove liability or lack of liability; does not require exclusion
when proving witness bias or prejudice, rules purpose is to encourage settlements
ii. Bankcard America v. Universal Bancard Systems Breach of K claim for damages; 2x a jury returned a verdict
that was vacated. **Davis: opinion is written kind of tongue in cheek; likening the opinion to a football game
metaphor, and it seems to be poking fun at Judge Posner.
- Policy: settlement efforts will be chilled if evidence of such talks are able to be admitted at trial. Therefore,
the court reasons, when relevant to liability, 408 prohibits admission of such evidence. Court reverses Judge
Posner and reinstates original verdict
iii. 2.4: Ramda Dev. Co. v. Rauch (5th Cir. 1981) - Motel plans break down and Motel refuses to pay. Motel hired a
group to study alleged defects & report confirmed defects. Builder now wants to use the report at trial. Does it
fall under 408 Motel wouldnt have commissioned the report in settlement attempts if they thought it could be
used against them at trial. The report was excluded from evidence.

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*2006 amendment took out the words otherwise discoverable, but the intent remains the same
III.

410 PLEAS IN CRIMINAL CASES

TEXT
INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS - EXCEPT AS
OTHERWISE PROVIDED IN THIS RULE, EVIDENCE OF THE FOLLOWING IS NOT, IN ANY CIVIL OR
CRIMINAL PROCEEDING, ADMISSIBLE AGAINST THE DEFENDANT WHO MADE THE PLEA OR WAS A
PARTICIPANT IN THE PLEA DISCUSSIONS:
THESE THINGS ARE ALWAYS BARRED (UNLESS SPECIFICALLY ALLOWED UNDER THE
HOWEVER CLAUSE:
(1) A PLEA OF GUILTY WHICH WAS LATER WITHDRAWN;
(2) A PLEA OF NOLO CONTENDERE (NO CONTEST);
(3) ANY STATEMENT MADE IN THE COURSE OF ANY PROCEEDINGS UNDER RULE 11 OF F.R.
CRIM PRO. OR COMPARABLE STATE PROCEDURE REGARDING EITHER OF THE FOREGOING PLEAS;

POLICY
(1) A DEFENDANT,
ALTHOUGH NOT GUILTY,
MIGHT OFFER A PLEA TO
AVOID THE RISK OF LOSS
AFTER TRIAL AND AN
EVEN GREATER PENALTY.
NOTE THE ABSENCE OF
ANY SUCH ARGUMENT IN
THE ADVISORY
COMMITTEES NOTES

OR

(4) ANY STATEMENT MADE IN THE COURSE OF PLEA DISCUSSIONS WITH AN ATTORNEY FOR

(2) EXCLUSION WILL

THE PROSECUTING AUTHORITY WHICH DO NOT RESULT IN A PLEA OF GUILTY OR WHICH RESULT
IN A PLEA OF GUILTY LATER WITHDRAWN

PROMOTE PLEA
BARGAINING

HOWEVER, SUCH A STATEMENT IS ADMISSIBLE (I) IN ANY PROCEEDING WHEREIN ANOTHER

STATEMENT MADE IN THE COURSE OF THE SAME PLEA OR PLEA DISCUSSIONS HAS BEEN
INTRODUCED AND THE STATEMENT OUGHT IN FAIRNESS BE CONSIDERED CONTEMPORANEOUSLY
WITH IT, OR (II) IN A CRIMINAL PROCEEDING FOR PERJURY OR FALSE STATEMENT IF THE
STATEMENT WAS MADE BY THE DEFENDANT UNDER OATH, ON THE RECORD AND IN THE
PRESENCE OF COUNSEL

Statements D makes during plea negotiations with prosecutor may not be used to impeach if D testifies
differently later. *410 operates differently from all other specialized relevance rules
Plea negotiation protection only extends if D first establishes hes seeking a concession; some courts interpret
this broadly and say Ds intent is enough; if D unilaterally offers info without first establishing that he is seeking a
concession, a court may determine no plea discussion began and Ds statements are admissible.
The rule only covers discussions with prosecutors (not police)

Bars evidence of pleas/discussions only when offered against D.

Policy: (1) Relevance: A D, although not guilty, might offer a plea to avoid the risk of loss after trial and an
even greater penalty; and (2) Public Policy: Encourage plea bargaining and allow prosecutors to use a cooperating
defendant without imperiling his constitutional rights
i. United States v. Biaggi (1991) A rejected immunity offer is significantly more probative than prejudicial
and should be admissible as evidence of innocence. D rejects immunity offer and claims innocence. 410 seems
to be protecting defendant. P: Ds rejection may be indicative of innocence, but its equally likely that he just
wanted to go to trial & this could discourage immunity offers (policy arguments akin to 410 plea discussions). D:
it has a tendency to suggest innocence (relevancy rule) so let the jury decide. **Rejection of an offer to plead
guilt to reduce *charges could evidence an innocent state of mind, but inference is not nearly as strong as a
rejection of an opportunity to preclude all exposure to a conviction. The unfairness of this exclusion was
exacerbated when government presented evidence of Ds consciousness of guilt
ii. What if, No thanks. Id rather face you guys at sentencing, then those guys up some dark alley. Can be used to
show overall context (fairness) D opens the door then other parts might come in.
iii. Notes: By its terms the rule does not prevent D from presenting evidence that prosecutors offered to drop a
charge during plea discussions i.e Biaggi, but since the same policy argument can be applied, some courts ignore
the language and bar the evidence anyways.
IV.

411: LIABILITY INSURANCE

TEXT
BARS LIABILITY INSURANCE OR LACK

POLICY
(1)(A) IT IS UNLIKELY THAT THE INSURED ARE MORE CARELESS OR THAT THE

OF IT TO PROVE
NEGLIGENCE/WRONGFUL ACTION, BUT
NOT TO PROVE OTHER THINGS SUCH AS
AGENCY, OWNERSHIP, CONTROL, OR

UNINSURED ARE MORE CAREFUL

(B) THE JURY MIGHTO THERWISE SEEK DEEP (INSURED) POCKETS OR REDUCE
RECOVERIES TO INSURED PLAINTIFFS = THE MORE IMPORTANT GROUND FOR
EXCLUSION

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WITNESS BIAS

(2) EXCLUSION ENCOURAGES INSURING AND AVOIDS A WINDFALL FOR THE

OPPONENT OF AN INSURED PARTY

**It used to be that the word insurance was automatic grounds for a mistrial - P usually wants to show D has liability
insurance and D wants to show if he doesnt.
i. Williams v. McCoy (2001) Personal injury claim; D said P hired attorney before doctor visit (P was working
the system). P wants to explain that she hired the attorney after a visit from Ds claims adjuster, but wasnt
allowed. P contended her explanation was admissible for a purpose other than existence of liability insurance.
411 only excludes insurance evidence as an independent fact (on issue of negligence/wrongdoing), not as an
absolute bar if it is offered for another purpose. (proof of agency, ownership, or control, or bias or prejudice
of a witness). **The evidence did not bear directly on Ds liability/wrongful conduct, thus it was not barred by
411. Potential prejudice did not outweigh probative value & jurors are likely to think there is car insurance
anyways since most all drivers have it..
ii. Problem 2.6 - D & expert witness insured by same med. malpractice insurance; D wanted this fact excluded. P
tried to argue that if they had the same insurance then everybody shares the profits and spreads the losses. This
was excluded on the basis of federal rule 411.
iii. Forbidden Jury Topics - Jury Blindfolding attempts sometimes fails when topic is offered for a legally
acceptable purpose, a witness mentions it even though prohibited (potentially disadvantaged party has to weigh
objecting/limiting instruction/request a mistrial bc it could backfire and draw more attention to it).
-------------------------------------------------------------------------------------------------------------------------UNIT 1 RELEVANCE CHAPTER 3 CHARACTER EVIDENCE
TYPE OF PERSON SOMEONE IS - German law everything is prohibited, except what is permitted. French law (i.e. 404)
everything is permitted, except what is prohibited. Russian law everything is prohibited, including what is permitted. &
Italian law everything is permitted, especially what is prohibited."
A.

CHARACTER PROPENSITY RULE - character trait evidence may not be introduced to support an inference that
the person acted on a specific occasion in conformity w that character trait; To protect the innocent from undue
prejudice (jury giving character trait excessive weight). *404 applies only to criminal D, whose life or liberty is at stake
(A) CHARACTER EVIDENCE IS NOT ADMISSIBLE TO PROVE ACTION IN CONFORMITY THEREWITH ON A PARTICULAR OCCASION.
EXCEPT:
(1) CHARACTER OF ACCUSED - IN A CRIMINAL CASE, EVIDENCE OF A PERTINENT TRAIT OF CHARACTER OFFERED BY AN
ACCUSED, OR BY PROSECUTION TO REBUT THE SAME, OR IF EVIDENCE OF A TRAIT OF CHARACTER OF THE ALLEGED VICTIM OF
THE CRIME IS OFFERED BY AN ACCUSED AND ADMITTED UNDER 404(A)(2), EVIDENCE OF THE SAME TRAIT OF CHARACTER OF
THE ACCUSED OFFERED BY THE PROSECUTION.
(2) CHARACTER OF ALLEGED VICTIM - IN A CRIMINAL CASE, AND SUBJECT TO 412 LIMITATIONS, EVIDENCE OF A PERTINENT
TRAIT OF CHARACTER OF THE ALLEGED VICTIM OF THE CRIME OFFERED BY AN ACCUSED, OR BY THE PROSECUTION TO REBUT
THE SAME, OR EVIDENCE OF A CHARACTER TRAIT OF PEACEFULNESS OF THE ALLEGED VICTIM OFFERED BY THE PROSECUTION IN
A HOMICIDE CASE TO REBUT EVIDENCE THAT THE ALLEGED VICTIM WAS THE FIRST AGGRESSOR
(3) EVIDENCE OF THE CHARACTER OF A WITNESS - AS PROVIDED IN RULES 607, 608, AND 609.

(B) EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS (ANYTHING NOT DIRECTLY AT ISSUE IN THE CASE) IS NOT ADMISSIBLE TO
PROVE THE CHARACTER OF A PERSON IN ORDER TO SHOW ACTION IN CONFORMITY THEREWITH. (MERELY REPEATS 404(A))
IT MAY (COURT STILL HAS DISCRETION), HOWEVER BE ADMISSIBLE FOR OTHER PURPOSES, SUCH AS PROOF OF MOTIVE,
OPPORTUNITY, INTENT, PREP, PLAN, KNOWLEDGE, IDENTITY, OR ABSENCE OF MISTAKE OR ACCIDENT PROSECUTION SHALL
PROVIDE REASONABLE NOTICE IN ADVANCE OF TRIAL (THE LIST IS NOT REALLY NECESSARY; NOT EXHAUSTIVE, JUST
ILLUSTRATIVE)

404(B) CHARACTER EVIDENCE MAY BE ADMISSIBLE TO SHOW AMOKIIPP (absence of mistake/accident,

motive, opportunity, knowledge, identity, intent, prep, or plan)
i. Zackowitz (1930) - In criminal cases, character is never an issue unless D makes it one & evidence cannot be
introduced to show evil disposition/D is likely to have committed the offense charged. This comes down to unfair
prejudice charged with premeditation
- D charged with shooting a man who made a lewd comment to his wife. Prosecution entered evidence of Ds
possession of multiple guns (not murder weapons) to show D was vicious and dangerous and one capable of
murder. (No FREs at this time). D did not raise his character first, thus prosecutions character attack was
wrongfully allowed.
Dissent: D was not presented to jury as one having a dangerous disposition but rather as someone who had the
opportunity to carry out his threats with a weapon and did so.

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ii. CLIP: D accused of killing a man who made sexual advances toward his wife. D: Do you love your wife? Yes sir.
(brings up Ds character) P: How many men have you killed? Objection - a mans war record should not be used
against him. P: war can condition a man to kill/use of firearms on other human beings. D: I killed 4 men .
Maybe others, but I dont know.
Defense: prejudicial - painting D as a killer & time wasting bc D will have to defend it as a man who served this
country.
Prosecution: this is a person who has killed before and it shows he had the means and skill to do so again 404(b) motive, opportunity, preparation, knowledge - this goes directly to knowledge of use of gun, which is how
the victim died. He put on testimony about his loving marriage & set out his character opening the door.
**Judges Discretion: keep in mind, there is that word may Judge had ability to deny it
B.

PROPENSITY BOX: violent D might be more likely to start a fight than a mild person, BUT unfair prejudice
(1) Jury will give it excessive weight and allow it to bear too strongly on present charge (character evidence is usually
colorful and/or memorable)
(2) It might help justify a guilty verdict irrespective of present charge guilt (i.e. D should be off the streets); or (b) jury
might punish because other offense deserves punishment
(3) It could confuse and distract the jury and drag out trial because D will want to counter it
401 B THEY ARE NOT EXCEPTIONS THEY ARE EXAMPLES!!! THEY ARE NOT COMPLETE YET
ILLUSTRATIVE (GO AROUND PROPENSITY)
ROUTES AROUND THE PROPENSITY BOX (INFERENCE THAT D IS THE TYPE OF PERSON TO HAVE COMMITTED A
CRIME): Identity exception to place D at the crime scene
EVIDENCE OF ZACKOWITZS OTHER WEAPONS

-To prove his vicious and dangerous character

-To prove he was at the crime scene

To prove action in conformity therewith

-To prove he killed with premeditation

THROUGH THE PROPENSITY BOX, NOT VALID

a.

-To prove he was the shooter

IF OFFERED TO PROVE HIS IDENTITY, VALID

-------------------------------------------------------------------------------------------------------------------------------True Exceptions to the Box

1. 404(a)(1): Criminal D can introduce evidence about OWN character (if pertinent) to support an inference
that D did not commit the charged crime.

D can only introduce this type of evidence through the testimony of

witnesses who state an opinion about Ds general character or report Ds reputation in the community.
405(a) MAY NOT USE SPECIFIC INSTANCES OF PAST GOOD ACTS

Once D puts his reputation at issue, prosecutor may cross-examine these

character witnesses by asking whether they have heard or know about specific past acts by D (including
arrests where there was no conviction or indictment) and the prosecution may also introduce rebuttal
evidence (direct, not cross) by putting on witnesses to testify about Ds character (reputation or opinion)

Michelson v. US (1948) D accused of bribing a fed revenue agent

introduced witnesses testifying to his good reputation in the community. On cross, prosecutor validly
introduced specific acts and asked witnesses if they knew D was arrested for buying stolen goods

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B.

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People v. Zackowitz (1930): Character is never an issue in a criminal
prosecution unless D chooses to make it one. Prosecution could not introduce evidence that D owned
guns to show he was a person criminally inclined and had an evil character

2.

404(a)(2): In criminal trials, D may show victim had a violent character by introducing evidence of victims
pertinent character traits for violence (using reputation or opinion). Prosecution may rebut w/ character
evidence about the victim or the defendants aggressive nature (i.e. rebut w/ the same)
(a) Homicides: To prove victim acted in conformity with propensity for violence & was the aggressor.
Prosecutor may then introduce rebuttal evidence of Vs character for peacefulness & can also respond
with character evidence about D, relevant to the trait D brought up, even if D hasnt put his own
character at issue (*note: instance where pros can initiate intro of circ. character evidence)
(b) Self-Defense: To persuade jury that D believed the victim was about to use force against him
Victims violent character can be used to show effect on Ds state of mind. Relevance depends on
whether D knew of Vs character, including knowledge of reputation or specific acts (i.e. he murdered
someone before) (see 405(b).)

3.

404(a)(3): Propensity evidence is allowed for impeachment - When the issue is whether a witness has
testified truthfully, evidence about the witnesss character for truth-telling is permitted to support the
inference that the witness has acted at the trial in conformity with the witnesss usual respect for the truth

4.

413, 414, & 415 specifically allow proof of Ds sexual propensities in sex offense trials- true exceptions
to propensity evidence ban - permit prosecutors and civil Ps to offer evidence of Ds other acts of sexual
assault or child molestation on any relevant matter

ROUTES AROUND THE BOX

1. Proof of Knowledge
i. 3.1 In Feb, Hacker shipped computers to fake address. In Mar. another order was placed to a
nonexistent accounting office. D, 17-year-old, signed for delivery and police arrested him. D pled guilty
to Mar. incident, but argued innocence to Feb. charges. Prosecutors want to offer evidence of later theft
at trial; they argue that few people know how to hack & its not only the same incident, but also the
same company. This most likely would be allowed. D could request an instruction. D could argue there
were not enough similarities & maybe it was just an easy company to hack into.
ii. Clip: husband charged with missing wifes murder; former GF testified that during her relationship w
D, he made specific torture technique threats and claimed he had the military expertise to get rid of
someone without leaving a drop of blood behind. State - If he threatened a former gf, then maybe he
threatened wife; shows D prob acted consistent with his character. 404 Exceptions: knowledge
military-trained ability to kill; maybe argue preparation thought about it, and plan explained
details. Defense - Very prejudicial (403); not a specific crime just alleged remarks from a bitter ex.
Counter to knowledge shes not the right person to testify to that and anyways how does his
knowledge lead to his identity in this case
iii. 3.2 - Prosecution successfully argues that past conviction is evidence of knowledge of the drug trade
and also his identity (purposes under 404(b)). (1) Special relevance high degree of similarity - exact
proof is not necessary totality of the comparison 3 convictions show he knew the drug trade in this
particular community & (2) not substantially outweighed by unfair prejudice THIS IN AN
ARGUMENT AROUND THE BOX THIS IS AROUND THE BOX BECAUSE IT IS NOT
SAYING HIS PRIOR CONVICTION MAKES HIM ANY MORE PROBABLY TO HAVE DONE
THIS CIRME, BUT RATHER HE HAS KNOWLEDGE OF THE TRADE
iv. 3.3 - General reputation that he was a drinker and conducted his job negligently shows that RR knew
or should have known his reputation for using alcohol particularly while he was operating the train.
**In trying to work around the box keep the focus away from his character
403- DOOR TILTS IN , BECAUSE IT HAS TO HAVE SUBSTANTIAL PREJUDICE !
NOTES:

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IF HAVE TO HAVE PROPENSITY TO COMPLETE THE INFERENCE CHANGE, YOU HAVE A 404
PROBLEM!!!!
EXPERTISE IS AN AROUND THE BOX ARGUMENT THIS DOES NOT REQUIRE PROPENSITY
REASONING- FOR EXAMPLE: SOMEONE HAS HACKING EXPERTISE, HE IS MORE LIKELY TO
COMIT THIS CRIME, NOT BECAUSE HE HAS DONE IT BEFORE, BUT BECAUSE HE IS AMONG
ONLY SOME OF THE FEW PEOPLE WITH THE EXPERTISE ABLE TO PULL IT OFF
2.

Proof of Motive
i. 3.4 FBI agents following van; one agent says it looks like they are going to shoot at us, then shots
break out, and agents are fatally shot. Gov wants to admit that D was charged w attempted murder in WI
& failed to appear. This charge gave him a motive to kill these agents. *Note: Gov did not try to also
admit that the previous charge was murder of an off-duty police man
ii. Presumed Innocent Clip attempt to enter evidence of Ds affair with victim. D: hes not on trial for
an affairhighly prejudicial. State: motive to kill - affair
3. Proof of Identity
i.
ii. 3.6 - Carrying a gun consistent with one used in the killings can show identity obviously considered in
connection with other evidence in the case. has to be a really serious crime in order for jury to
decide how much weight (when considering motive)
iii. 3.7 Gov. offers that D had been convicted of illegal commercial gambling previously because
materials currently seized involve illegal gambling, so the fact that he was in the apartment and had
former similar charges connects him to the materials even though hes claiming they arent his. Plus, his
previous conviction demonstrates his ability to commit crimes like this. D: argues differences bw
charges and unfair prejudice. 11th circuit did think the prejudice outweighed probative value, but affd
bc it was harmless error.
iv. United States v. Trenkler
v. (1995) Signature evidence crimes are so similar, motis
operandi, that its almost like the person has put his signature on
it. Evidence is admissible under 404(b) only when it is
determined to have some special relevance, independent of its
tendency to show criminal propensity, on a material issue,
unless the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice.
vi. MOTIS OPERANDI: IS SOOO UNIQUE, THE CHARACTERISITICS OF THE CRIME ARE
SO UNIQUE TO THE PREVIOUS GUY, THAT IS HAS TO BE THE SAME GUY
(EXTREMELY HIGH SENSE OF COMMONALITY- EARMARKING) HOWEVER,
EXACT MATCH IS NOT NECESARRY BUT YOU LOOK AT TOTALITY AND LOOK FOR
1) CHARACTERISTIC (I.E. LOTS OF SIMILARITIES) 2) ONE HIGHLY DISTINCTIVE
SIMILARITY
vii. D convicted of charges related to Massachusettss bomb explosion. D appeals challenging admission of
evidence related to Ds involvement in a prior bombing. Under 404(b), there was such a special
relevance with respect to the evidence and a reasonable jury could have determined that the same person
was responsible for both bombs.
viii. 3.9 D convicted of possession of a firearm by a felon when police discovered handgun in bedroom
where he was apprehended. D tried to introduce evidence that another individual with whom he was
arrested had previously been convicted of possessing a firearm attempting to show the gun was his and
not Ds. No evidence that the other arrestees previous conviction involved the same gun or even the
same type of gun. D argues under U.S. v. Stevens, 935 F.2d 1380 (3d Cir. 1991) that evidence of crimes
or bad acts committed by persons other than D is admissible so long as its probative value is not
substantially outweighed by the risk of unfair prejudice, undue delay or confusion of the issues.
- How did D misread the Stevens case?
ANY CHAIN OF INFERENCE REGARDLESS WHAT PARTY IT IS ATTACHED TO- IF IT GOES
THROUGH PROPENSITY IT WILL BE A 404 PROBLEM

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STEVENS CASE
-REVERSE 404 (B) LOWER STANDARD OF PROOF THAN WHAT THE PROSECUTION WOULD BE
HELD TO TO SHOW M.O.
4.

5.

Narrative Integrity (Res Gestate-look at the whole thing; fill in blanks/show connections)
i. 3.10 D charged with possession of revolver with obliterated serial number D claimed it wasnt his.
Prosecution intended to call his ex to testify he played Russian Roulette w her w that gun. Judge said
she could testify that D possessed the gun and pulled the trigger in front of her, but could not name it
Russian roulette or that he pointed it at her. Prosecution - jury might be leery (think she was
mistaken) of testimony that was so vague; if the gun was pointed toward her that might be more
convincing & contribute to her credibility by realizing it made an impression on her diminishes
probative value in an unfair way someone who was threatened with a gun MIGHT remember what it
looked like (might have more credibility) but the fact that it was not pointed at her makes it seem like
shes lying why would she be able to identify it so well??
ii. Clip woman running crazy with tape; civil case for negligence. *403, 404, 405 applies to both
criminal and civil cases. P wants to offer witness testimony revealing all of the other things she did
leading up to the leap as probative of her recklessness in that specific context. D too prejudicial.
Absence of Accident
i. 3.11 D shot his wife, but claimed it was an accident while he was cleaning his gun. Prosecution
sought to admit evidence that D previously used the same defense with the death of his first wife.
**Also, might fit under doctrine of chances what is the likelihood that this would happen twice.
(around the box because they are saying because he didnt do it before, he did it this time essentially)
ii. 3.12 D snatched dog from owner's lap inside car and threw it into oncoming traffic. D testifies he
reflexively tossed dog after it bit him, prosecutors were allowed to call a witness who claims he
previously clubbed a stray dog to death in the navy to show that dog's cruel death was natural and
probable result of Ds intentional/negligent act and was sufficient to support conviction of felony animal
cruelty. It goes both to impeach D and establish a relevant material fact tossing the dog was malicious
and intentional AND uncharged act testified to is sufficiently similar to the charged offense to support a
reasonable inference. ** Courts typically allow this kind of evidence to come in.

United States v. Degeorge

-Prosecution wants to bring in evidence of previous tax fraud, under 404 (b) exception not to show propensity
but to show the story for example: jury would not understand why he was not insured (due to the 3 previous
fraudulent transactions) without understanding this they would not understand*
6.

C.

Doctrine of Chances chances/odds that something happens repeatedly

**Judge Scruttons imaginary card game theory made Rex v. Smith famous - jury could draw from that
series of fortunate accidents the inference of design if
someone is found with an ace is pocket one time maybe an
accident, but three times and it becomes suspicious
i. Rex v. Smith - Brides in Baths man marries wealthy
women, drafts their wills, and in each case (all 3x) the wives
are
found dead in the bathtub. Admissible to help jury draw an
inference as to whether the death was accidental (design and
plan)
& help jury determine if D had a system of murdering
women to obtain their money (motive and plan).
ii. Scholars at Odds - Experts disagree - Imwinkelried is giving credit though that this is 403(b) type of
evidence whereas Rothstein says its evidence that goes through the box and is no way around it.

HUDDLESTON STANDARD

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1.
Huddleston v. United States (1988) unanimous - D indicted for knowingly selling stolen goods (video tapes) in
interstate commerce. His defense was he didnt know they were stolen. Gov. introduced similar acts by D
testimony (not charges/convictions) of record storeowner saying D sold him 38 TVs trying to show that former TV
sales were stolen goods/similar act.
-D claims he didnt know merchandise was not stolen- in regard to TV- they have circumstantial evidence in regard to
this]
STANDARD OF PROOF: PREPONDERANCE OF EVIDENCE determined under 404B standard- that a jury could
reasonably find that it was true by preponderance of evidence
- Court does not need to make a preliminary finding that past acts actually occurred so long as there is sufficient
evidence by which a jury COULD reasonably find that the conditional fact existed (clear and convincing is not the
standard). The jury decides whether prior act occurred; court only decides if it is relevant (here, he sold a large
quantity for a low price and there was no bill of sale.). 404(b) protects against extrinsic act evidence offered solely to
prove character; there is no intimation that any preliminary showing is necessary before such evidence may be
introduced for a proper purpose.
- 4 safeguards: (1) 404(b) provides that evidence be offered for a proper purpose; (2) 402 provides relevancy
requirement; (3) 403 requires the trial court determine the probative value/unfair prejudice; and (4) 105 provides that
trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper
purpose for which it was admitted (this is a tactical decision that must be made).
2.
3.13 - Past Acquittal (1990) A man wearing a ski mask and carrying a pistol robbed a bank; a woman was
robbed same day by two men, one she knew and one wearing a ski mask with a pistol. She identified him as D. D
was acquitted of this offense. Can this testimony now be admitted in the bank robbery charges? Probably, the only
thing a not guilty verdict means is that the evidence was not sufficient not guilty does not mean innocent jury
wasnt satisfied of guilt beyond a reasonable doubt. Plus, a not guilty verdict can still be followed up by a civil suit,
which might conclude otherwise
- Court held (not unanimously) it would be permissible to use this evidence because the trial judge just needs to be
satisfied that government produced enough evidence that a jury, based on preponderance of evidence, could find
that D did the act we are trying to show. THEREFORE CAN ADMIT BECAUSE ON TRIAL THE
STANDARD OF PROOF WOULD HAVE BEEN BEYOND A REASONABLE DOUBT HER WE ARE
TALKING ABOUT PREPONDERANCE OF EVIDENCE I.E. LOWER STANDARD
- 3 justices dissented expressing the view that the testimony had effectively forced D to defend against charges for
which he had already been acquitted, and therefore criminal collateral estoppel grounded in the double jeopardy
clause should have prohibited the prosecution from introducing that testimony.
D.

PROPENSITY EVIDENCE IN SEXUAL ASSAULT CASES

COMMON LAW: consent defense made victims character an issue, so D could bring up Victims sexual history, etc.
by reputation/opinion testimony.
THEN, prosecutors and civil Ps offer evidence of Ds other acts of sexual assault or child molestation on any matter to
which it is relevant under 404

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E.
Now and now under FREs 413, 414, &415 specifically allow proof of the defendants sexual propensities in
sex offense trials (save federal prosecutors from having to justify evidence of other sexual offenses)
41
2

REPUTATION OR OPINION TESTIMONY EVIDENCE ATTEMPTING TO SHOW EITHER THAT (1) ALLEGED VICTIM ENGAGED IN
SEXUAL BEHAVIOR OR (2) ALLEGED VICTIMS SEXUAL PREDISPOSITION IS INADMISSIBLE EXCEPT:
IN CRIMINAL CASES WHEN (1) PS SEX W OTHERS GOES TO THE ISSUE OF WHETHER ACCUSED WAS SOURCE OF
PREGNANCY AND (2) PAST SEX ACT WITH D AS TO ISSUE OF PS CONSENT OR OTHER FALSE ALLEGATIONS OF SEXUAL
ASSAULT MADE BY P.
IN A CIVIL CASE WHEN ITS PROBATIVE VALUE OUTWEIGHS THE DANGER OF HARM TO VICTIM OR UNFAIR PREJUDICE TO
EITHER PARTY

41
3

Evidence of Similar Crimes in Sexual Assault Cases

(A) IN A CRIMINAL CASE IN WHICH D IS ACCUSED OF AN OFFENSE OF SEXUAL ASSAULT, EVIDENCE OF DS COMMISSION
OF ANOTHER OFFENSE OR OFFENSES OF SEXUAL ASSAULT IS ADMISSIBLE, AND MAY BE CONSIDERED FOR ITS BEARING ON
ANY RELEVANT MATTER.
(B) IN A CASE IN WHICH THE GOVERNMENT INTENDS TO OFFER EVIDENCE UNDER THIS RULE, THE ATTORNEY FOR THE
GOVERNMENT SHALL DISCLOSE THE EVIDENCE TO THE DEFENDANT, INCLUDING STATEMENTS OF WITNESSES OR A
SUMMARY OF THE SUBSTANCE OF ANY TESTIMONY THAT IS EXPECTED TO BE OFFERED, AT LEAST FIFTEEN DAYS BEFORE
THE SCHEDULED DATE OF TRIAL OR AT SUCH LATER TIME AS THE COURT MAY ALLOW FOR GOOD CAUSE.
(C) 413 SHALL NOT BE CONSTRUED TO LIMIT THE ADMISSION OR CONSIDERATION OF EVIDENCE UNDER ANY OTHER
RULE.
(D) FOR PURPOSES OF THIS RULE AND RULE 415, "OFFENSE OF SEXUAL ASSAULT" MEANS A CRIME UNDER FEDERAL LAW
OR THE LAW OF A STATE (AS DEFINED IN SECTION 513 OF TITLE 18, UNITED STATES CODE) THAT INVOLVED(1) ANY CONDUCT PROSCRIBED BY CHAPTER 109A OF TITLE 18, UNITED STATES CODE;
(2) CONTACT, WITHOUT CONSENT, BETWEEN ANY PART OF THE DEFENDANT'S BODY OR AN OBJECT AND THE
GENITALS OR ANUS OF ANOTHER PERSON;
(3) CONTACT, WITHOUT CONSENT, BETWEEN THE GENITALS OR ANUS OF THE DEFENDANT AND ANY PART OF
ANOTHER PERSON'S BODY;
(4) DERIVING SEXUAL PLEASURE OR GRATIFICATION FROM THE INFLICTION OF DEATH, BODILY INJURY, OR
PHYSICAL PAIN ON ANOTHER PERSON; OR
(5) AN ATTEMPT OR CONSPIRACY TO ENGAGE IN CONDUCT DESCRIBED IN PARAGRAPHS (1)-(4).
Evidence of Similar Crimes in Sexual Assault Cases (*SAME AS 413, BUT APPLICABLE TO CHILD MOLESTATION)
(A) IN A CRIMINAL CASE IN WHICH D IS ACCUSED OF AN OFFENSE OF CHILD MOLESTATION, EVIDENCE OF DS
COMMISSION OF ANOTHER OFFENSE OR OFFENSES OF CHILD MOLESTATION IS ADMISSIBLE, AND MAY BE CONSIDERED FOR
ITS BEARING ON ANY MATTER TO WHICH IT IS RELEVANT.
(B) IF GOVERNMENT INTENDS TO OFFER EVIDENCE UNDER THIS RULE, THE GOV. ATTORNEY SHALL DISCLOSE THE
EVIDENCE TO D, INCLUDING STATEMENTS OF WITNESSES OR A SUMMARY OF THE SUBSTANCE OF ANY TESTIMONY THAT
IS EXPECTED TO BE OFFERED, AT LEAST FIFTEEN DAYS BEFORE THE SCHEDULED DATE OF TRIAL OR AT SUCH LATER TIME
AS THE COURT MAY ALLOW FOR GOOD CAUSE.
(C) THIS RULE SHALL NOT BE CONSTRUED TO LIMIT THE ADMISSION OR CONSIDERATION OF EVIDENCE UNDER ANY
OTHER RULE.
(D) FR PURPOSES OF THIS RULE AND RULE 415, "CHILD" MEANS A PERSON BELOW THE AGE OF FOURTEEN, AND
"OFFENSE OF CHILD MOLESTATION" MEANS A CRIME UNDER FEDERAL LAW OR THE LAW OF A STATE (AS DEFINED IN
SECTION 513 OF TITLE 18, UNITED STATES CODE) THAT INVOLVED O-- (1) ANY CONDUCT PROSCRIBED BY CHAPTER
109A OF TITLE 18, U.S.C., THAT WAS COMMITTED IN RELATION TO A CHILD; (2) ANY CONDUCT PROSCRIBED BY
CHAPTER 110 OF TITLE 18, U.S.C.; (3) CONTACT BETWEEN ANY PART OF THE DEFENDANT'S BODY OR AN OBJECT AND
THE GENITALS OR ANUS OF A CHILD; (4) CONTACT BETWEEN THE GENITALS OR ANUS OF THE DEFENDANT AND ANY PART
OF THE BODY OF A CHILD; (5) DERIVING SEXUAL PLEASURE OR GRATIFICATION FROM THE INFLICTION OF DEATH, BODILY
INJURY, OR PHYSICAL PAIN ON A CHILD; OR (6) AN ATTEMPT OR CONSPIRACY TO ENGAGE IN CONDUCT DESCRIBED IN
PARAGRAPHS (1)-(5).
Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child
(A) IN A CIVIL CASE IN WHICH A CLAIM FOR DAMAGES OR OTHER RELIEF IS PREDICATED ON A PARTY'S ALLEGED
COMMISSION OF CONDUCT CONSTITUTING AN OFFENSE OF SEXUAL ASSAULT OR CHILD MOLESTATION, EVIDENCE OF THAT
PARTY'S COMMISSION OF ANOTHER OFFENSE OR OFFENSES OF SEXUAL ASSAULT OR CHILD MOLESTATION IS ADMISSIBLE
AND MAY BE CONSIDERED AS PROVIDED IN RULE 413 AND RULE 414 OF THESE RULES.
(B) A PARTY WHO INTENDS TO OFFER EVIDENCE UNDER THIS RULE SHALL DISCLOSE THE EVIDENCE TO THE PARTY
AGAINST WHOM IT WILL BE OFFERED, INCLUDING STATEMENTS OF WITNESSES OR A SUMMARY OF THE SUBSTANCE OF
ANY TESTIMONY THAT IS EXPECTED TO BE OFFERED, AT LEAST FIFTEEN DAYS BEFORE THE SCHEDULED DATE OF TRIAL
OR AT SUCH LATER TIME AS THE COURT MAY ALLOW FOR GOOD CAUSE.
(C) THIS SHALL NOT BE CONSTRUED TO LIMIT ADMISSION OR CONSIDERATION OF EVIDENCE UNDER ANY OTHER RULE.

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1.

STATE COURTS STRUGGLED WITH PAST SEXUAL MISCONDUCT EVIDENCE UNDER

STRETCHING THE MEANING OF INTENT, MOTIVE, AND PLAN

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404 EQUIVALENTS BY

i.

ii.

iii.
iv.

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Lannan v. State (1992) Under 404 (*413, 414, & 415 not adopted yet) prior sexual misconduct will be
admitted if it proves motive, opportunity, intent, plan, knowledge, or identity; just not to show an act in
conformity with a character trait. State court applied Depraved Sexual Instinct Exception (Indiana CL) prior
sexual behavior is admissible as an exception against bad act character evidence to (1) help bolster childrens
testimony & (2) deter repeat sexual predators (Recidivism Rationale sex offenders repeat their crimes more
often than any other criminals). Indiana Sp Ct rejected allowing this kind of evidence now allowed in federal
courts under Rules 413 and 415
- Lannan was convicted of molesting 14 year old victim after a jury heard testimony from another alleged Victim
even though there were no charges. Indiana CL rule abandoned, but conviction affirmed, as the impact of the
evidence of prior sexual behaviors, was not of sufficient weight to require reversal.
**Remember 404 is a French rule everything is allowed, except which is specifically prohibited, namely
use of other crimes/bad acts to show Ds bad character
**Davis: eight states have adopted a rule equivalent to Rule 413 or 414 (including Indiana in 1993, no doubt in
response to Lannan). NOTE *prior acts are admissible, they still may be excluded if the court finds that their
probative value is substantially outweighed by the risk of unfair prejudice.
State v. Kirsch (1995) (frustrating case) - burden is on prosecution to prove the purpose for which it offers
other crimes evidence. D convicted of various sexual offenses committed against minors. Trial court allowed
testimony of other alleged sexual assaults unrelated to the present charge, and allegedly committed against
various other young women. D appealed conviction. Court found that this evidence did violate the 404(a)
propensity ban; testimony showed Ds propensity to commit sexual assaults and that D acted in conformity
therewith, not evidence of Ds motive, intent, and/or common plan or scheme, thus it was improperly admitted.
Motive the reason that nudges the will and prods the mind to indulge the criminal intent or what prompts a D
to engage in particular criminal activity State argues it show motive in selecting particular victims, but
court says it shows his desire for sexual activity with a certain type of victim, which is proof of propensity
Intent evidence of other bad acts must be able to support a reliable inference, not dependent on Ds character
or propensity, that D had the same intent on occasions of the charged/uncharged acts. The court said similar
assault evidence tending to prove his guilt of charged offenses is to seek to show propensity, pure and
simple; calling it relevant to prove state of mind does not make it so
Common Plan or Scheme a pattern or systematic course of conduct is insufficient to establish a plan, to be
admissible it must be constituent parts of an overall scheme of which each of the crimes is but a part. Court
says these acts were not constituent parts of an overall scheme and were not part of the bigger plan
Dissent: majoritys narrow reading of common plan exception essentially requires the State to show Ds state of
mind before he started on his spree of criminal conduct, limiting the exception to a mutually dependent series of
events.
3.14 Admissibility of prior acts of domestic violence as common plan/scheme- bc they are blueprinted details
for control - stalking, assault, and property crimes are all integral to the grand design.
Clip: in opening prosecution says they plan to present evidence of Nicoles previous 911 call; you can hear OJ
talking and slapping her; evidence of a prior act of domestic violence. Motive to kill her and avoid charges
maybe a stretch. Prosecution then calls OJ a wife beater, abuser, controller defense could object bc jury can
draw their own conclusions from 911 tape; using these labels. THIS IS CLASSIC CHARACTER USE

SIDE NOTE:
KNOWLEDGE = USED FOR INDENTITY
CONGRESS SOUGHT TO ENSURE THAT FEDERAL TRIAL JUDGES COULD ADMIT EVIDENCE OF PAST SEXUAL
MISCONDUCT IN SEXUAL ASSAULT AND CHILD MOLESTATION CASES

3 Federal Rules: They go against the rule against character evidence (to prove person acted in conformity w/habits,
etc.) by allowing testimony that D committed other similar acts. (Some people believe the Federal rules have gone too
far in favor of the State.)
i. United States v. Guardia (1998) Relevant propensity evidence is admissible under 413 but is still subject
to 403. 413 essentially supersedes 404(b) and allows government to offer Ds prior conduct evidence to
demonstrate Ds propensity to commit the charged offense, but the 403 balancing test still applies to 413
evidence. **If trial court had admitted evidence appeals court probably would have agreed this is about
deference to the trial court
- Dr. charged with sexually abusing 2 patients; gov. sought to offer testimony of 4 others w similar abuse claims.
Under 403 it was excluded bc risk of jury confusion substantially outweighed probative value.
- 412 states is admissible, if otherwise admissible under these rules, but 413 doesnt include this. BUT 402

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applies 403 and contains language no more explicit than 413. FURTHERMORE, Molinari said normal
evidence rules will be applied (p. 208 In other respects, the general standards of the rules of evidence will
continue to apply).
413 still involves 403 balancing test court should apply test with careful attention to both the significant
probative value and the strong prejudicial qualities inherent in all evidence submitted under 413. If 413 were
always too prejudicial under 403 than it would never admit any evidence. Thus the court interprets it to leave
open the possibility of admission.
3.

United States v. Mound (1999) Rule 413 does not violate due process (5A) bc it must still pass 403 test.
- Mound charged with sexual abuse and assault and government offered evidence under 413 of two other acts of sexual
abuse. Mound argued that 413 violates 5As due process clause because it authorizes the jury to overvalue character
evidence, punished D for past acts, and convict D for who he I, rather than for what he has done. The majority held that
since evidence admitted under 413 must survive a 403-balancing test it is not unfair.
Dissent - 413 runs counter to the centuries old legal tradition violates fundamental conceptions of justice. Congress was
worried even in adopting the rule that it would displace essential protections that are fundamental to American
jurisprudence and have evolved under long-standing rules and case law.

F. CHARACTER PROOF OF DEFENDANT AND VICTIM

405

1.

METHODS OF PROVING CHARACTER

(A) REPUTATION OR OPINION. IN ALL CASES IN WHICH EVIDENCE OF CHARACTER OR A TRAIT OF CHARACTER OF A
PERSON IS ADMISSIBLE, PROOF MAY BE MADE BY TESTIMONY AS TO REPUTATION OR BY TESTIMONY IN THE FORM OF AN
OPINION. ON CROSS-EXAMINATION, INQUIRY IS ALLOWABLE INTO RELEVANT SPECIFIC INSTANCES OF CONDUCT.
(B) SPECIFIC INSTANCES OF CONDUCT. IN CASES IN WHICH CHARACTER OR A TRAIT OF CHARACTER OF A PERSON IS
AN ESSENTIAL ELEMENT OF A CHARGE, CLAIM, OR DEFENSE, PROOF MAY ALSO BE MADE OF SPECIFIC INSTANCES OF
THAT PERSON'S CONDUCT.

3 TYPES OF CHARACTER EVIDENCE

WITNESSS OPINION - requires that the witness actually know the person about whom he is testifying
My Brothers Keeper - Yeah my nephew -that would be his uncle if you have character witnesses, you
need to establish a firm knowledge of the person
-- Defense Goal: humanize the client help the jury relate to him; Prosecutor Goal: (1) try to break
connection bw witness & D (1) length of relationship; (2) knowledge of prior convictions (specific instances w
documented support)
TESTIMONY ABOUT PERSONS REPUTATION - only requires that witness has heard about Ds rep in the
community; the witness doesnt need first hand knowledge of his actual character
ACTUAL INSTANCES OF PAST CONDUCT specific act evidence by opinion or reputation when (i) D offered
evidence of his good character, prosecutor can cross witness about specific acts to show opposite; or (ii)
when a persons character is an essential element of a charge, claim, or defense (i.e. defamation
rebutting a defense of truth, child custody prove character/fitness of parent, insanity lacked volitional
control, entrapment D was predisposed to commit the crime, self defense victim was violent *some
jurisdictions allow it as an essential element of the offense; most say its not an element but rather a pertinent
character trait)
i. Michelson v. United States (1948) Party has the right to cross another partys character witnesses
about past bad acts such as arrests and/or convictions if D opens the door of it it goes to a specific
element, of the charge/defense. **Note: It cannot be a fishing expedition
- D admits to bribing a federal agent, but claims entrapment. D offers five witnesses to testify to his good
reputation. Prosecution allowed to cross and ask if they knew specific acts (D had prior arrest for
receiving stolen goods)

2.

NOTES:
FOR CRIMINAL DS ONLY BECAUSE his life & liberty is at hazard. Perrin (10th Cir. 1986) extended defense
opportunity to civil case where Ds were accused of serious crimes, BUT after 2006 amendment the Perrin Doctrine
was dead and evidence was only allowed to be presented by criminal Ds.
Criminal Ds bear the slightest burden of proof thus any favorable character evidence may raise a reasonable
doubt;

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Criminal Ds argue peaceful/non-violent traits, unlike civil Ds who argue careful character traits. Careful persons
are occasionally careless, WHEREAS law-abiding citizens typically never commit serious crimes. *Fortunate
fact of life which carries persuasive probative force
Ds evidence of good character carries little risk of unfair prejudice to the government. (*note- doesnt explain
why Ds can offer victims bad character evidence bc jury could choose to deny the laws protection to an
unsavory victim)

DISTINGUISHING PROOF OF CHARACTER 405 V. 413, 414, & 415:

405
413, 414, 415
PROOF CAN BE BY REPUTATION OR OPINION
REQUIRES THAT EVIDENCE BE SPECIFIC
*DAVIS: CHARACTER EVIDENCE NOW BASICALLY PUTS
PROVEN ACTS OF OTHER OFFENSES (I.E.
WITNESSES ON THE STAND AND ASK WHAT
SEXUAL ASSAULT/CHILD MOLESTATION)
PEOPLE/WITNESSES THINK OF DS CHARACTER/REPUTATION
HOLLORAN V. VIRGINIA CHEMICALS

G.

TO BRING IN HABIT- MUST SHOW THAT HE EXPECTS TO PROVE A SUFFICIENT NUMBER

OF INSTANCES OF THE CONDUCT IN QUESTION
3.15: D can arguably be her own character witness. D: If you had to do it over again, would you shoot him?
D: I wouldnt shoot anybody. But if I had to, it would be Mr. Cusick. Cross: Prosecutor: You told the detective
you had shot at people before, though, didnt you? D: Yes
- CA court dealt with it as a prior inconsistent statement. BUT arguably, I wouldnt shoot anybody is her being
her own character witness opening the door for cross to go into specific instances to rebut character.
Could also come in to say she lacks credibility- that she says one thing one time and one thing another!
i. MORE ON 3.15 404 would allow defendant to bring in evidence of that character trait- HOWEVER
should the court admit THIS evidence? NO, it should not come in, but why???? Because this is evidence
of a SPECIFIC act, not evidence of reputation or opinion, if it was reputation or opinion they COULD
bring it in
3.16: D claims self-defense for murder; during trial victim friends threaten Ds brother. Under 405(a) specific
instances arent allowed. Issue is Ds reasonable fear not his character it may help show fear, but its not
necessary.
3.18: Expert proffered testimony that the victims body contained cocaine, morphine, and alcohol to excessive
amounts. Its an opinion so whats the problem with admitting it as character evidence? 405(a) allows Character
or a trait of character this isnt really character evidence of decedent. There could be an argument for
admitting this evidence even if we accepted that (which we dont), we find that it would have been harmless
error because there was other evidence, ample evidence to show the fight and show that the victim started the
fight.
WHAT WOULD THE UNFAIR PREJUDICE BE? That the prosecution will take such a dislike to him
because he is on drugs, that they will render a decision based upon this
EVIDENCE OF HABIT if you can prove particular habit, you can show that person acted according to that habit

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1.

EVIDENCE OF THE HABIT OF A PERSON OR OF THE ROUTINE PRACTICE OF AN ORGANIZATION, WHETHER CORROBORATED
OR NOT AND REGARDLESS OF THE PRESENCE OF EYEWITNESSES, IS RELEVANT TO PROVE THAT THE CONDUCT OF THE
PERSON OR ORGANIZATION ON A PARTICULAR OCCASION WAS IN CONFORMITY WITH THE HABIT OR ROUTINE PRACTICE.

3.19: Estate suing decedents doctor who was wrongly prescribing steroids. 8 former patients learned that pills
prescribed by same doctor were also steroids. If Ps estate seeks to offer this evidence, how should the court rule?
D.C. Circuit reversed (rare) and said evidence shouldnt have been admitted and it was not harmless error. Habit
evidence should be something that is not volitional same scenario or stimulus again and again and again and your
response to it is always UNFAILINGLY the same (Davis Ex: you always put your socks on before you put your
pants on you do it so often and in the same way that it is a routine that is not even thought about). A DOCTOR
GOING THROUGH THE INFO AND PRESCRIBING THIS IS NOT THE SAME AS PUTTING YOUR

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SOCKS ON THE SAME WAY EACH DAY REQUIRES WAY MORE COGNITIVE FUNCTION THAN A
HABIT THAT REQUIRES NO THINKING
Key focus is predictive, which is unlike other propensity evidence, the more predictive the behavior, the more
probative. To justify introduction of habit a party must be able to show he expects to prove a sufficient number of
instances of the conduct in question.
- Advisory committee suggests that regular drinking does not qualify as a habit under 406 (some courts allow it
though) some argue the noted suggestion is evidence that the committee meant to extend the category of habit
only to relatively innocuous behavior
- There is no clear straight line separating habits from the sort of character-based propensities regulated under 404
and even if we could decide where to draw the ine, human behavior rarely conforms to human categorizations.

2.

-------------------------------------------------------------------------------UNIT 1 CHAPTER 4 IMPEACHMENT AND CHARACTER FOR TRUTHFULNESS

I.

MODES OF IMPEACHMENT
- Error v. Lie - A lawyer can call a witness mistaken by casting doubt on her powers of perception, memory, or narrative
accuracy (as long as the evidence is relevant under 401 and survives 403 balancing test).
- Lying Now v. Liar: suggestion that a witness is lying is different than saying the witness has a tendency to lie
A.

NON-CHARACTER IMPEACHMENT
although mostly consistent with the inference that the witness is a liar, none depend on that inference
(1) Contradiction by Conflicting Evidence (sensory deficiencies): perception, memory or narration mistakes
(2) Contradiction by Past Inconsistent Statement: different things said before and therefore shouldnt be believed
on this point bc of possibly lying, misperception, poor memory, or bad narrative skills
My Brothers Keeper Clip: Prosecutor: Did Delbert tell you he killed his brother? Brother: No.
P: (reading deposition) Q: do you know how William died? A: he was smothered. Q: do you know how
smothered him. A: Delbert. Q: when did Delbert tell you he smothered your brother. A: this morning at the
barn. Sir, after hearing that do you want to change any of your testimony?
- Illustrates prior inconsistent statement; not to show brother is a liar, just challenging this particular
statement - for whatever reason, he said one thing earlier and he is saying something else today.
(3) Evidence of Bias: the relationship between a party and a witness might lead the witness to slant in favor of or
against a party
A Few Good Men Clip: Cruise attempts to impeach the doctor by demonstrating bias & motive. Hes not
saying the doctor is a bad character, but hes attacking his testimony in this case to show that maybe hes
protecting himself since he possibly confirmed a sick man for service. This is permissible.

B.

CHARACTER-BASED IMPEACHMENT:
607 WITNESS CREDIBILITY MAY BE ATTACKED BY ANY PARTY, INCLUDING THE PARTY CALLING THE WITNESS
Bad Character, especially for dishonesty: (a) Prior Convictions (609(a): misdemeanors involving dishonesty, and any
felony; conviction cant be more than 10 years old unless court finds probative value substantially outweighs
prejudicial effect); (b) Bad Acts (extrinsic evidence prohibited); and (c) Bad Reputation (usually for not telling the
truth)
A.

IMPEACHMENT BY OPINION, REPUTATION, AND CROSS-EXAMINATION ABOUT PAST LIES: 608

(A) WITNESS CREDIBILITY MAY BE ATTACKED OR SUPPORTED BY EVIDENCE AS OPINION/REPUTATION, BUT SUBJECT TO
LIMITATIONS: (1) EVIDENCE MAY REFER ONLY TO CHARACTER FOR TRUTHFULNESS OR UNTRUTHFULNESS, AND
(2) EVIDENCE OF TRUTHFULNESS IS ADMISSIBLE ONLY AFTER WITNESS CHARACTER HAS BEEN ATTACKED AND REBUTTAL MUST
BE IN THE FORM OF OPINION OR REPUTATION

(B) SPECIFIC INSTANCES OF WITNESS CONDUCT OF A WITNESS, OTHER THAN CONVICTION UNDER 609, MAY NOT BE PROVED BY
EXTRINSIC EVIDENCE. THEY MAY, HOWEVER, IN COURTS DISCRETION, IF PROBATIVE OF TRUTHFULNESS OR UNTRUTHFULNESS, BE
INQUIRED INTO ON CROSS CONCERNING (1) WITNESS' CHARACTER FOR TRUTHFULNESS OR UNTRUTHFULNESS, OR (2) CHARACTER
FOR TRUTHFULNESS OR UNTRUTHFULNESS OF ANOTHER WITNESS AS TO WHICH CHARACTER THE WITNESS BEING CROSSEXAMINED HAS TESTIFIED.
**NOTE NO TESTIMONY HERE OPERATES AS A WAIVER OF ACCUSED'S OR WITNESS' PRIVILEGE AGAINST SELF-INCRIMINATION

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Limitations on 608(b)(1): (1) specific instances must be probative of (un)truthfulness; (2) and they cannot be proved
by extrinsic evidence; (3) inquiry must survive 403; & (4) inquiry must have a good faith basis (Michelson - lawyer
must have info in his possession that reasonably leads him to believe that the acts of conduct have in fact been
committed).
i. United States v. Whitmore (2004) When witness was only one connecting D to weapons to support
conviction, his reputation for untruthfulness was an issue that could be brought up under 608(a) and
specific instances of untruthfulness can be brought up under 608(b). Why are we looking at these
witnesses?? 602- DO THEY HAVE A BASIS IN THEIR OPINION they have to be tested before they
can be used!!
ii. EVEN IF WITNESS LIES CANT BRING IN EXTRNSIC EVIDENCE UNDER 608 NOW THE DOOR
IS CLOSED- CAN ONLY ASK THE CROSS EXAMINATION QUESTION
iii. 608 IS TRUTHFULNESS CREDIBILITY QUESTION- REQUIRES GOOD FAITH BELIEF!!!!!!!!!!! IN
WHITMER THE DMV RECORDS IS THE PROOF OF GOOD FAITH HERE)
608(a) arguments: Prosecution tried to argue that impeaching witnesses had no direct contact with witness or
community for some time. 608(b) arguments: Defense: a lawyer only needs a reasonable basis for asking Qs
on cross which tend to incriminate/degrade a witness; driving record provided this basis, even though the
record was inadmissible, testimony about it wasnt.
iv. Clip: D: are you familiar with Ds reputation for truthfulness and voracity in the community? This is an
appropriate question under 608(a)
v. 4.1(a) Ps witness testifies D started the fight. Then P calls neighbor to testify to witnesss peaceful
reputation. Inadmissible her credibility hasnt been attacked
4.1(b) During Ds case, D calls a long-time coworker to testify that the witness previously lied while selling
him a car. Inadmissible not character evidence in the form of opinion or reputation, this is a specific
instance, which is only allowed on cross. *Would be allowed if he said In my opinion based in all my
dealings with the witness, shes a liar. Bc 608(a) permits an opponent to attack a witnesss character for
truthfulness by opinion or reputation evidence.
4.1(c) Then P, on cross, asks about college expulsion for trashing dorm room. Inadmissible impeachment
attempt; although 608(b)(1) permits inquiry about specific acts, those acts must be probative of truthfulness
or untruthfulness. *If the question asked about lying about this incident on a medical school application that
would be Admissible.
413, 414, 415- civil and criminal
404 (a) (opinion/reputation no exception) CRIMINAL ONLY- tied to ELEMENTS OF CRIME OR
DEFENSE - has to be in a criminal case and HAS to relate to a pertinent trait defendant has to OPEN
the DOOR for it
404 (b) only in homicide and only to enter peacefulness look into this!
608- ON DIRECT YOU NEED A SPECIFIC INDICENCE- ON CROSS- YOU JUST NEED INFO OF
REPUTATION---** specific incidence of CONDUCT- CAN BE CIVIL OR CRIMINAL- RELATES TO
CHARACTER OF A WITNESS and TRUTHFULNESS not about crime- JUST about impeaching
character of witness for truthfulness (IF THE DEFENDANT IS NOT A WITNESS- THEN NO
QUESTION OF 608)
609- applies to prior convictions
bias example: you really love your brother dont you this would be ADMISSABLE showing bias that
in this circumstances he has a bias to shave the truth

- UNDER 608- THEY MUST SPECIFICALLY STATE REPUTATION IN REGARD TO

TRUTHFULNESS because just asking abouts someones reputation is insufficient has to go
directly to the problem at hand aka cant ask if he is a woman beater if its about him being a
bad real estate agent**

B.

IMPEACHMENT WITH PAST CONVICTIONS: 609

(A) GENERAL RULE FOR THE PURPOSE OF ATTACKING THE CHARACTER FOR TRUTHFULNESS OF A WITNESS,
(1) EVIDENCE THAT A WITNESS OTHER THAN AN ACCUSED HAS BEEN CONVICTED OF A CRIME SHALL BE ADMITTED,
SUBJECT TO RULE 403, IF THE CRIME WAS PUNISHABLE BY DEATH OR IMPRISONMENT IN EXCESS OF ONE YEAR UNDER THE

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LAW UNDER WHICH THE WITNESS WAS CONVICTED, AND EVIDENCE THAT AN ACCUSED HAS BEEN CONVICTED OF SUCH A
CRIME SHALL BE ADMITTED IF THE COURT DETERMINES THAT THE PROBATIVE VALUE OF ADMITTING THIS EVIDENCE
OUTWEIGHS ITS PREJUDICIAL EFFECT TO THE ACCUSED; AND
(2) EVIDENCE THAT ANY WITNESS HAS BEEN CONVICTED OF A CRIME SHALL BE ADMITTED REGARDLESS OF THE
PUNISHMENT, IF IT READILY CAN BE DETERMINED THAT ESTABLISHING THE ELEMENTS OF THE CRIME REQUIRED PROOF OR
ADMISSION OF AN ACT OF DISHONESTY OR FALSE STATEMENT BY THE WITNESS.

(B) TIME LIMIT. EVIDENCE OF A CONVICTION UNDER THIS RULE IS NOT ADMISSIBLE IF A PERIOD OF MORE THAN TEN YEARS
HAS ELAPSED SINCE THE DATE OF THE CONVICTION OR OF THE RELEASE OF THE WITNESS FROM THE CONFINEMENT IMPOSED
FOR THAT CONVICTION, WHICHEVER IS THE LATER DATE, UNLESS THE COURT DETERMINES, IN THE INTERESTS OF JUSTICE, THAT
THE PROBATIVE VALUE OF THE CONVICTION SUPPORTED BY SPECIFIC FACTS AND CIRCUMSTANCES SUBSTANTIALLY OUTWEIGHS
ITS PREJUDICIAL EFFECT. HOWEVER, EVIDENCE OF A CONVICTION MORE THAN 10 YEARS OLD AS CALCULATED HEREIN, IS NOT
ADMISSIBLE UNLESS THE PROPONENT GIVES TO THE ADVERSE PARTY SUFFICIENT ADVANCE WRITTEN NOTICE OF INTENT TO USE
SUCH EVIDENCE TO PROVIDE THE ADVERSE PARTY WITH A FAIR OPPORTUNITY TO CONTEST THE USE OF SUCH EVIDENCE

(C) CONVICTION EVIDENCE IS NOT ADMISSIBLE UNDER THIS RULE IF (1) IT HAS BEEN THE SUBJECT OF A PARDON, ANNULMENT,
CERTIFICATE OF REHABILITATION, OR OTHER EQUIVALENT AND THAT PERSON HAS NOT BEEN CONVICTED OF A SUBSEQUENT
CRIME THAT WAS PUNISHABLE BY DEATH OR IMPRISONMENT IN EXCESS OF ONE YEAR, OR (2) IT HAS BEEN SUBJECT OF A
PARDON, ANNULMENT, OR OTHER EQUIVALENT PROCEDURE BASED ON A FINDING OF INNOCENCE (THIS APPLIES TO ALL
CONVICITIONS JUVELNILE OR NOT)

i.

Anatomy of a Murder - Jail snitch testifying to what D told him while in jail. Credibility Qs bc of ulterior
motives to testify i.e. shortened sentence/immunity. Prosecution can lose credibility when a witness has such
a bad character. Usually state brings it out on direct to look straightforward and honest.
D: What other offenses have you committed? Defense attorney doesnt know the answer, hes probing
cross-examiner needs to have a good-faith basis for asking about prior conviction
Witness: reform school as a kid -- not admissible bc 609(d) (609(d) only comes in for witnesses who
ARENT defendant) says juvenile adjudications are only admissible under narrow circumstances. This is
different bc the question did not ask that. Prosecutor could ask for the answer to be stricken, but nevertheless
the jury heard it. **Davis: You can draw a nail into the wall. You can pull that nail out, but the hole is
still there.
D: 6 prior convictions & he starts to read them out like a long list to the jury. If you are the prosecutor, this is
exactly what you DO NOT want to happen now defense gets to play his own emphasis PEEPing Tom,
Indecent EXPOSure.
ii. Convictions that do not involve dishonesty or false statements are admissible, if
(a) punishable by death and (b) evidence passes built-in 403 balancing test
United States v. Brewer (1978) When witness is the accused (criminal D) court favors exclusion; lower
standard than 403. 5 Factors: (1) nature of the crime, (2) time of conviction and the witness subsequent
history , (3) Similarity b/n the past crime and the crime charged, (4) Importance of Ds testimony, and (5)
Centrality of the credibility issue
- D charged with kidnapping and transporting a stolen motor vehicle. Time limit issue: 1960 kidnapping
conviction he served time and was released on parole, but was sent back. ccourt says you look at all of it
and include the re-incarceration and new release date. That doesnt make it admissible, it just means the
court is going to consider it
- Current kidnapping charge and prior kidnapping conviction court decides probative value will be
outweighed by prejudice because jury might give an inordinate amount of weight than its entitled to (i.e.
he kidnapped before and that cancels out my reasonable doubt.).
When witness is not the criminal D (civil witnesses, prosecution witnesss, Ds witnesses except himself)
court favors admissibility; evidence is excluded only if its probative value is substantially outweighed by
prejudicial effect
iii. Convictions for crimes involving dishonesty or false statement regardless of the punishment are
ALWAYS ADMITTED (no 403 balancing)
4.5 Meter Fixing - Civil case; P testifies; on cross he is asked about former conviction for tampering with
electric meters. Under 609 this could go to deceitfulness, so long as the one who wants to inquire on cross
offers support (charging instrument/specificity in the indictment/statute etc) for the trial court to readily
determine the charges go to show dishonesty. (readily can be determined added - *policy avoid side
trials).
iv. Luce & Ohler - upfront answers requested from D illustrate the difficult decision for criminal Ds: the
jury wants to hear from them, but admissible evidence decisions like prior convictions could decide
the trial before its even over.

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Luce (1984) D asked judge if prosecutor could impeach D with past convictions if he chose to testify,
judge tentatively ruled convictions would be admissible. The Supreme Court ruled unanimously that Ds
failure to testify barred his appeal bc without a reviewing record its impossible to know even whether
the challenged evidence would have been admitted. Any possible harm flowing from a district courts in
limine ruling permitting impeachment by a prior conviction is wholly speculative. J. Brennan in
concurrence emphasized that the careful weighing of probative value and prejudicial effect that 609(a)
requires can only be evaluated on appeal in the specific factual context as it unfolded. Here, there is no
evidence so the appeals court says they cannot evaluate it
Ohler (2000) D asked same question; Judge concluded prior convictions would be admissible. This time
D elected to testify and to mitigate damage her lawyer brought out prior convictions first on direct.
Supreme Court ruled 5-4 that D waived any right to complain about its admission since she brought it
up. Dissent since analysis is made no more difficult by the fact that the convictions came out on direct
rather than cross, the case doesnt turn on Luce and todays result will unfairly prejudice Ds who face
Ohlers choices bc the jurys assessment of Ds testimony may be affected not only by knowing the
crimes, but seeing that D was forthcoming about them.

608 and 609 DIFFERENCES AND SIMILARTIES:

608 YOU CAN ALWAYS DEFEND BY SAYING THAT THE QUESTION DOES NOT GO TO
TRUTHFULNESS- 609- ON THE OTHER HAND ANSWERS THAT QUESTION AS A POLICY
MATTER608 NO EXTRINSIC EVIDENCE 609 EXTRINSIC EVIDENCE IS ALLOWED (SUBJECT TO 403)
609- second most used rule after 409(b) has a dramatic impact on whether or not the defendant will
testify if the defendant testifies, cant appeal

c.

REHABILITATION
4.6 D charged with bank robbery; D calls Louise as an alibi witness
(1) Prosecutor: Arent you in business w Ds father? W: Yes. A witness to testify to Louises reputation for
truthfulness and veracity is Inadmissible. relationship answer implies a bias, but cross concerning these
facts does not go to her credibility.
(2) Prosecutor: isnt it true on the day of the robbery, that place you said you had lunch was closed. W:
Thats right- I forgot. We ate at Rosies instead. A witness to testify to Louises reputation for truthfulness
and veracity is Probably Inadmissible. it really doesnt go to her character for truthfulness, she was just
mistaken and admits it.
(3) Prosecutor: Didnt you state in your bank loan app you had no outstanding debt, when in fact you owed
$82K in student loans. W: A witness to testify to Louises reputation for truthfulness and veracity is
Admissible. This is an attack on her credibility if she misrepresented something before this would suggest
she might do it again.
(4) Prosecutor offers evidence that 6 years earlier she was convicted of armed robbery and sentenced to 4
years in state prison. Admissible. Use of prior convictions to challenge credibility is acceptable under 609(a)
(1) to attack her character for truthfulness.
(5) D calls Johnsons neighbor - he knew Louise for 8 years and in his opinion, she is a truthful person.
Admissible. Yes her credibility has been attacked this is opinion (could be opinion or reputation to
rehabilitate).
(6) After Ds character witness testified, prosecutor asks on cross, Do you know that she lied in her bank
loan statement? Admissible. Q tests neighbors relationship with Louise
4.7 United States v. Bonner (7th Cir. 2002) - D charged with swindling Veterans Admin benefit payments. D
challenged two character witnesses because it allowed the state to bolster the credibility of those witnesses.
Court ruled that D opened the door because (1) In opening D implied witness bias bc gov. reinstated her
benefits; (2) D suggested that witness had recently been cleared of the same charges; and (3) she was

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questioned about receipt of money implying a financial inducement for her testimony. All statements that
implied the witness was biased and had motive to testify and as such, are precisely the kind that allow for
testimony aimed at rehabilitation of the witnesss character.
- BUT going to bias this wouldnt really be an attack on her credibility, so arguably this was the wrong
outcome. BUT someone who accepts bribes is a dishonest person and that goes to probative of
truthfulness/untruthfulness, but this issue wasnt raised here.
d.

USE OF EXTRINSIC EVIDENCE Offering Proof ask witness a question and the witness lies, then what!?
4.8 (1) Prosecutor: Didnt you state in your bank loan app you had no outstanding debt, when you owed $82K in
student loans. W: No. Prosecutor knows this is false, can, but any evidence is Inadmissible false claim
qualifies as a specific instance of conduct probative of untruthfulness- 608(b). But that rule bars extrinsic
evidence of such conduct. (*policy avoid side trials)
(2) Prosecutor: Arent you in business w Ds father? W: No. Prosecutor knows this is false, he can now call a
witness to testify to the truth It goes to bias & bias is not deemed a collateral matter, extrinsic evidence to
prove bias is allowed.
Whats a collateral matter? Something that is not central to the case!!!! (ex. Whether the light was green or not in a
negligence car accident claim this WOULD NOT be a collateral matter- bc central to case)
4.9 Hall v. State (Wyo. 2005) - D is on trial for running a drug lab. Witness testifies that D permitted her and 3rd
party to operate lab in his home. D wants to call 2 witnesses: (1) would testify that witness falsely accused him
of possessing drugs to divert the authorities from her to him. (2) witness would testify that witness threatened
to report him if he refused to fix her car.
- Trial court did not allow either, but State Sp Ct reversed. Testimony couldve shown her self-interest &
motive to lie or exaggerate. **Davis: Its not that clear on either one of them though.

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-----------------------------------------------------------------Unit 1 Chapter 5 The Rape Shield Law
- When the federal rules were first adopted there was no FRE 412, just like the other ones we looked at. FRE 412 is now
the federal rule version of the rape shield law (Rule Supplement p. 85)
412(A)

412(B)

(A) THE FOLLOWING EVIDENCE IS NOT ADMISSIBLE IN ANY CIVIL OR CRIMINAL PROCEEDING INVOLVING ALLEGED
SEXUAL MISCONDUCT EXCEPT AS PROVIDED IN SUBDIVISIONS (B) AND (C):
(1) EVIDENCE OFFERED TO PROVE THAT ANY ALLEGED VICTIM ENGAGED IN OTHER SEXUAL BEHAVIOR.
(2) EVIDENCE OFFERED TO PROVE ANY ALLEGED VICTIM'S SEXUAL PREDISPOSITION.
(B) EXCEPTIONS.
(1) IN A CRIMINAL CASE, THE FOLLOWING EVIDENCE IS ADMISSIBLE, IF OTHERWISE ADMISSIBLE UNDER THESE RULES:
(A) SPECIFIC INSTANCES OF SEXUAL BEHAVIOR BY ALLEGED VICTIM OFFERED TO PROVE THAT A PERSON OTHER
THAN THE ACCUSED WAS THE SOURCE OF SEMEN, INJURY, OR OTHER PHYSICAL EVIDENCE;
(B) SPECIFIC INSTANCES OF SEXUAL BEHAVIOR BY ALLEGED VICTIM WITH RESPECT TO THE PERSON ACCUSED OF THE
SEXUAL MISCONDUCT OFFERED BY THE ACCUSED TO PROVE CONSENT OR BY THE PROSECUTION; AND
(C) EVIDENCE THE EXCLUSION OF WHICH WOULD VIOLATE THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT.
(2) IN A CIVIL CASE, EVIDENCE OFFERED TO PROVE THE SEXUAL BEHAVIOR OR SEXUAL PREDISPOSITION OF ANY ALLEGED
VICTIM IS ADMISSIBLE IF IT IS OTHERWISE ADMISSIBLE UNDER THESE RULES AND ITS PROBATIVE VALUE SUBSTANTIALLY
OUTWEIGHS THE DANGER OF HARM TO ANY VICTIM AND OF UNFAIR PREJUDICE TO ANY PARTY. EVIDENCE OF AN
ALLEGED VICTIM'S REPUTATION IS ADMISSIBLE ONLY IF IT HAS BEEN PLACED IN CONTROVERSY BY THE ALLEGED VICTIM.

412(C)

(C) PROCEDURE TO DETERMINE ADMISSIBILITY.

(1) A PARTY INTENDING TO OFFER EVIDENCE UNDER SUBDIVISION (B) MUST
(A) FILE A WRITTEN MOTION AT LEAST 14 DAYS BEFORE TRIAL SPECIFICALLY DESCRIBING THE EVIDENCE AND
STATING THE PURPOSE FOR WHICH IT IS OFFERED UNLESS THE COURT, FOR GOOD CAUSE REQUIRES A DIFFERENT TIME
FOR FILING OR PERMITS FILING DURING TRIAL; AND
(B) SERVE THE MOTION ON ALL PARTIES AND NOTIFY THE ALLEGED VICTIM OR, WHEN APPROPRIATE, THE ALLEGED
VICTIM'S GUARDIAN OR REPRESENTATIVE.
(2) BEFORE ADMITTING EVIDENCE UNDER THIS RULE THE COURT MUST CONDUCT A HEARING IN CAMERA AND AFFORD
THE VICTIM AND PARTIES A RIGHT TO ATTEND AND BE HEARD. THE MOTION, RELATED PAPERS, AND THE RECORD OF THE
HEARING MUST BE SEALED AND REMAIN UNDER SEAL UNLESS THE COURT ORDERS OTHERWISE

A.

COMMON LAW: Pre- 1978 - judges made case-by-case determinations. Women rarely reported rapes b/c they
knew their entire character would be called into question.
i. People v. Abbot (1838) woman accuses man for sexual assault; D inquires into accusers sexual past, character
for truth, and moral character. Classic Rule D could use this to discredit the victim.
- Rapes are private matters and the accuser is commonly the only witness so allowing the accuser to refuse to
answer such questions would hinder the justice process.
- And will you not more readily infer assent in the practice Messalina (Roman empress who conspired against
her husband), in loose attire, than in the reserved and virtuous Lucretia (innocent woman raped by king whose
rape allegedly caused the revolution that overthrew the Roman Republic monarchy) became one of the most
notorious passages in all American law.
ii. State v. Sibley (1895) The chastity rule discussed in Abbot only applied to women. D convicted of raping his
stepdaughter, who was under 18. Lower court admitted evidence concerning Ds character. Rule allowing witness
to be impeached by proof of general reputation for unchastity has been confined to females. Sp Ct of MO
reverses Ds conviction.
Dissent thinks it rests upon the same foundation whether the witness be male or female womans chastity
reveals an impairment of her moral sense.
iii. Anatomy of a Murder Ds murder defense is that he killed his wifes rapist in a jealous rage; wife testifies
about the rape- imagine shes a rape victim in a rape case before 412. On cross, prosecutor asks about prior
divorce for inhumane treatment, length of time bw divorce and re-marrying (3 days); asking if she could blindly
ignore the catholic religion and her oath on the rosary (like the oath today).
D: Shes a loose woman and we cannot believe what she is saying here. Prosecution: Irrelevant (bridge to no
where). *Note: 610 religion not admissible to show witness' credibility is impaired or enhanced.
iv. Anatomy of a Murderexactly what you are now not allowed to do under 412- D: Had you ever gone there
alone at night? W: Yes. D: Did your husband no you were going? W: No, not always. D: Did you ever go to
meet another man? Hes implying this rape was unchastity that was part of her character

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B.

THE SHIELD LAW (1978) FRE 412 - prevents inquiry into rape victims sexual past
**Davis - 404 is a French rule everything is admitted except that which is specifically prohibited; 412 is a German
rule everything is prohibited except that which is specifically allowable
i. Susan Estrich, Real Rape (1987) discusses the inadequacies of Rape Shield Laws in practice
ii. Sherry F. Colb, When to admit character evidence in criminal cases (2011) evidence of previous sexual
behavior has little, if any, probative value. Its no more likely that a sexually active woman would carry out an
accusation of false rape than that a woman less sexually experienced.
iii. Harriett R. Galbin, Shielding Rape Victims: A Proposal (1986) 412 goes too far and is too broad, the
legislators did not clearly understand the underlying evidentiary concepts; A 404(b) amendment would have been
better - allowing this evidence for only certain purposes:
In rape prosecution, evidence of consensual sexual conduct w persons other than the accused is not
admissible to show victim was more likely to consent to sex. Evidence of consensual sexual conduct however
may be admissible for other purposes i.e. identity, opportunity, common plan or scheme, and for other
purposes not specifically mentioned in the rule
In a rape prosecution, evidence that victim engaged in consensual sexual conduct is not admissible to
support the inference that the person is less worthy of belief as a witness.
CANT PUT ON EXTRINSIC EVIDENCE OF A SPECIFIC INCIDENCE IF ITS 404

C.

PERTINENT TRAIT WOULD ALLOW DEFENSE TO CROSS EXAMINE VICTIM ON THE STAND THE LAW IN FORCE
1. PAST SEXUAL BEHAVIOR WITH THE ACCUSED (Jovanovic) 5.1 - D and victims first date ended in a
sadomasochistic assault. D claims consent. Emails talking about sadomasochism were excluded, but on appeal
court held that emails from victim asserting she was into sadomasochism were sexual behavior, admissible under
fantasies etc. are PART of previous CONDUCT with the accused and therefore admissible under -412(b)(1)(B).
**Still subject to 403.
**Advisory Committee: Past sexual behavior connotes all activities that involve actual physical conduct.
2. EXPLAINING THE SOURCE OF PHYSICAL EVIDENCE 5.2 alleged attack & victim testified that D had never
been in her apt before that night. D says he was there before and it was consensual sex. Prosecution offers
evidence of Ds fingerprints in the bedroom. Does fingerprint evidence go to (b)(1)(B)? Hes claiming in this
accused action he wasnt there hes not offering evidence of this time being consensual, so (b)(1)(B) doesnt
apply. And (b)(1)(A) doesnt apply bc hes not pointing to anyone else to say someone else is the source
hes saying thats my fingerprint, but it didnt happen that night. *Thus, trial judge was incorrect to admit
finger prints
3. PAST ALLEGEDLY FALSE ACCUSATIONS
i. State v. Smith (1999) 412 hearing wasnt necessary because this
evidence was not about the victims past sexual behavior, but
rather it was impeachment evidence. D accused of molesting a
young girl; trial rested on her credibility. There should not have been
a
412 hearing and evidence of prior false allegations of molestation
should have been allowed. Court excluded it after a 412 hearing.
*Note evidence is still subject to 403, 404, 607, 608, and 613
ii. 5.3 Smith on Remand: need credible evidence to show that piror allegations did happen; low standard =
reasonable probability/relevance (Huddleston)
Q1: Can D attack witness credibility with former similar allegations Under 608(b), to use the prior
allegations evidence, the victim would have to testify. If there was a victim character witness then
D could directly ask the character witness about this on cross-examination.
-- If witness says no, Defense counsel would have to accept it bc no extrinsic proof is allowed
Q2: Does D need to establish the earlier allegations were false? All thats required is a reasonable
amount of info for the jury to believe conditional facts. Huddleston trial court neither weighs
credibility nor has to find conditional fact true, it simply examines all the evidence and decides
whether the jury could reasonably find the conditional fact.
Q3: 403 Balancing Relevant evidence may be excluded
iii. 5.4 Old Accusation State v. Alvery (1990) victim met D and accepted invite to his home; he allegedly
raped her. D sought to enter evidence of victims previous rape accusation after engaging in consensual
intercourse. Under 412, D cannot present a witness specifically to testify about it; D could cross-examine

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complainant about it though. *This is not like Smith case where D wasnt providing evidence of past sexual
behavior (questioning about a past retracted accusation). D is saying there was prior sexual behavior and it
was consensual this implicates Rule 412. BARRED by 412- truthfulness is not a defense! It does not
matter under 412- (Different than smith, the other one said conduct happened which didnt, here she said it
DID happen but wasnt consensual)
4. STYLE USES OF EVIDENCE OF PAST SEXUAL BEHAVIOR
a. Proof of Bias - Exposure of a motive to testify is a proper and important function of the protected right of crossexamination
Olden v. Kentucky (1988) per curiam Ds dropped victim at mans house and she claims rape. D argues his
6A right to confrontation was violated bc Ds evidence that victim & man were in relationship was
excluded and it would have showed a motive for lying (not that she was lying, but she had the motive to).
-- If Prof Gowans rule admitted under her proposed rule would be a 404(B) type rule offered not as
evidence of victims prior conduct/sexual behavior, but to show her possible motive to lie.
-- Note: Both Olden and Davis (holding D had right to confront prosecutions chief witness w questions
about his probationary status to show witness motive for denying his own guilt) protect Ds 6A right to
cross an accusor to show witness bias bc bias-based impeachment suggests a witness has a motive to lie in
this case, not that he has a bad character for truthfulness. BUT no Sp Ct opinion addresses if the
Confrontation Clause also protects Ds right to make a general, character-based attack on a prosecution
witnesss credibility. The constitutional status of defense attacks on accusers truthful character will vary
from circuit to circuit. See circuit splits on textbook p. 329-31.
ARGUMENT DOESNT MAKE SENSE BC IT IS SEXUAL BEHAVIOR TREATS IT LIKE 404
DOESNT EVEN EXIST GOING TO HAVE TO BE EXCEPTION OR CONSTITUTIONAL
EXCEPTION
5.5 Bryants Accuser- D claims woman had sex with 2 prosecution witnesses and had intercourse only hours
after encounter. Bryant wants to admit (1) her sexual acts with to show her knowledge, intent,
common plan, etc with respect to consenting. Sounds like 404(b), but 412 governs, so barred. (2) Her
sexual relationships with 2 prosecution witnesses. Could be allowed as motive (why she came up with
the story) or bias (but a woman is likely going to know the people she broke down to about the rape); and
(3) Her sexual conduct after the alleged rape admissible to rebut a contention by prosecutors that the
woman was diagnosed with post-traumatic stress disorder (assumes that prosecutors are going to offer
evidence of PSD kind of premature)
Dahlia Lithwick, The Shield that Failed (2004) Underlying the entire mess the legal system is inadequate
for resolving acquaintance rape cases & the media exacerbates the original injustice. Consequently, high
profile rape trials allow the media to do far more damage than rape shield laws ever tried to mitigate.
b.Narrative Integrity (Res Gestae)
Stephens v. Miller (1994) Victim said D entered her trailer and made unwanted sexual advances. D became
angry and aggressive. D said it was consensual sex, then he commented to victim about her sexual history
with another man, (dont you like it doggy style? Tim said you do), which made her angry. Lower court
allowed D to say he made a comment that enraged victim, but did not allow him to state the exact
comment about the victims sexual past.
-- Remember Old Chief (citing Parr v. U.S. (5th circuit); cert. denied (1958)) that explained the reason
for the rule is to permit a party to give the jury a picture of the events relied upon. To substitute a naked
admission might rob the evidence of its fair and legitimate weight, which reflects the fact that making a
case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a
colorful story with descriptive richness.
Holding: nothing in the constitution prohibited the exclusion of the testimony here (1) The Rape Shield
intended to prevent this exact kind of generalized inquiry into the victims past sexual conduct. Thus, to
accept Ds res gestae argument would make the rape shield useless. Also, there is nothing to support
Ds res gestae argument as a constitutional violation. In other circumstances (where D wasnt so
obviously guilty) the argument might be made that if D actually said the comment it might paint a picture
and make his testimony more believable.
Dissent: the exclusion of the evidence has interfered with Ds right to present his defense. The
plausibility of his defense turned on whether the jury could be persuaded that something he had said
could have angered her enough for her to make up the rape story

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- Prof Galvens 404(b) amendment: (Never adopted) - It probably would have been admitted under one
of the specific 404(b) purposes; not to show her sexual character or that she acted in conformity with it,
but rather to fill in the blanks.
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UNIT 2: RELIABILITY CHAPTER 6 COMPETENCY OF WITNESSES
I.

WITNESS COMPETENCY
60
1

60
2
60
3
61
0

GENERAL RULE OF COMPETENCY - EVERY PERSON IS COMPETENT TO BE A WITNESS EXCEPT AS OTHERWISE PROVIDED IN
THESE RULES. HOWEVER, IN CIVIL ACTIONS AND PROCEEDINGS, WITH RESPECT TO AN ELEMENT OF A CLAIM OR DEFENSE AS TO
WHICH STATE LAW SUPPLIES THE RULE OF DECISION, THE COMPETENCY OF A WITNESS SHALL BE DETERMINED IN ACCORDANCE
WITH STATE LAW.
(**EVERY STATUTE IS VERY BROAD; EXCEPT AS OTHERWISE PROVIDED BUT EXCEPTIONS ARE VERY FEW)
LACK OF PERSONAL KNOWLEDGE - 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. EVIDENCE TO PROVE
PERSONAL KNOWLEDGE MAY, BUT NEED NOT, CONSIST OF THE WITNESS' OWN TESTIMONY. THIS RULE IS SUBJECT TO THE
PROVISIONS OF RULE 703, RELATING TO OPINION TESTIMONY BY EXPERT WITNESSES.
OATH OR AFFIRMATION - BEFORE TESTIFYING, EVERY WITNESS SHALL BE REQUIRED TO DECLARE THAT THE WITNESS WILL
TESTIFY TRUTHFULLY, BY OATH OR AFFIRMATION ADMINISTERED IN A FORM CALCULATED TO AWAKEN THE WITNESS'
CONSCIENCE AND IMPRESS THE WITNESS' MIND WITH THE DUTY TO DO SO.
RELIGIOUS BELIEFS OR OPINIONS - EVIDENCE OF THE BELIEFS OR OPINIONS OF A WITNESS ON MATTERS OF RELIGION IS NOT
ADMISSIBLE FOR THE PURPOSE OF SHOWING THAT BY REASON OF THEIR NATURE THE WITNESS' CREDIBILITY IS IMPAIRED OR
ENHANCED.

Judges determine testimonial competence: whether (1) witness has personal knowledge of the matters of testimony;
and whether (2) the witness declares, by oath or affirmation, that she will testify truthfully
*No mental requirements
A.

COMMON LAW WITNESSES COMPETENCY lots of competency rules dictating who could and could not testify:
excluded partys spouses, persons with a financial interest in the case, convicted felons, and atheists. Purpose: to keep
from the stand anyone whose temptation or inclination to lie was greater than the norm.
B.
WITNESS COMPETENCY ISSUES ARE RARE & MOST OLD WITNESS COMPETENCY LAWS ARE GONE
i. Hypnosis - To prevent Ds testimony based on hypnotically refreshed memory, state would have to show
testimony was so unreliable that the exclusion is justified.
ii. Arises most commonly with young children - courts can exclude under 403 if probative value is weak bc child
cannot tell truth from falsehood. Factors that determine a childs competency vary from jurisdiction to
jurisdiction, but generally include: perception, accuracy; & ability to communicate
Some states have an age cut-off, but most have done away with this
1. Swan (1990) Court found the 3 year old was not competent to testify she didnt know her dress color,
the day, said she had been in court 40x when she had never been there before.
2. Alabama, Connecticut, and Utah all declare child victims of physical or sexual abuse to be
competent as a matter of law no hearing or objections
3. GA Appeals Court reversed child molestation conviction bc 8 year old victim improperly testified.
Prosecutor: Do you know when your birthday is? No. Do you go to school? Yes. Where? I dont know.
Do you know what telling a story is? Not supposed to tell a lie. Where are we? Court. Court: What does
court do? Help people. Prosecutor Is it bad to tell a story? Yes
D: Do you know what happens when you dont tell the truth? No. Do you ever make up games to play?
No. Do you ever talk to your dolls? Yes. If I told you I could fly without an airplane would you believe
me? Yeah.
ii. Davis: results differ, but more and more, particularly in sex abuse cases, children are able to testify
questions involving competency today, more often than not will involve children. In Practice: witnesses
must meet the ORR qualifications - ability to Observe (were the events perceived?), Remember (is
memory intact or hazy?), and Relate (communicate events intelligibly)
----------------------------------------------------------------------------------------UNIT 2: RELIABILITY CHAPTER 7 THE RULE AGAINST HEARSAY
RULE AGAINST OUT OF COURT STATEMENTS OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED
I.

HISTORICAL PRELUDE: Trial of Sir Walter Raleigh, Knt. At Winchester, for High Treason (1603) - Let me
see the accusation I claim to have my accuser brought here face to face to speak. 6A right to confrontation. You say
that Brooke told Watson what Cobham told Brooke, that I had said to him- what proof is this. Double hearsay. I protest
upon my salvation I never practiced with Spain by your procurement. Dying declaration. Sir Raleigh was convicted of

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treason and sentenced to death, but it wasnt carried out. He remained in jail until 1616.
II.

DEFINING HEARSAY out of court statement (or assertive conduct) offered in evidence to prove the truth of the
matter asserted; usually barred because of the importance of (1) jurys need to observe speakers demeanor; (2) Ds 6A
right to confront accuser; and (3) ability of cross to probe the witness

CLIP There were screams down by the lake. When did you hear them? I didnt hear them myself. Some tourists
from Ohio heard them and told me about them the next day. PROBLEM: it involves the credibility, not necessarily of the
witness testifying, but rather, of this out of court declarant
80
1

THE FOLLOWING DEFINITIONS APPLY UNDER THIS ARTICLE:

(A) STATEMENT - (1) AN ORAL OR WRITTEN ASSERTION OR (2) NONVERBAL CONDUCT OF A PERSON, IF IT IS INTENDED
BY THE PERSON AS AN ASSERTION.
(B) DECLARANT - A PERSON WHO MAKES A STATEMENT.
(C) HEARSAY - A STATEMENT, OTHER THAN ONE MADE BY THE DECLARANT WHILE TESTIFYING AT THE TRIAL OR
HEARING, OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED.
HEARSAY IS NOT ADMISSIBLE EXCEPT AS PROVIDED BY THESE RULES OR BY OTHER RULES PRESCRIBED BY THE
SUPREME COURT PURSUANT TO STATUTORY AUTHORITY OR BY ACT OF CONGRESS

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2

IF HEARSAY PROBLEM: ASK TWO QUESTIONS:

1.
A.

WHAT IS THE EVIDENCE BEING OFFERED TO PROVE?

NOT TO PROVE THE TRUTH OF THE MATTER
(1) Words Offered to Prove Effect on the Listener: present witness testifying about effect & she is available to test/observe
EXAMPLE: Self Defense - testimony to show someone had reason to fear D at the time of the attack is not hearsay
- Adams Rib Clip Woman killed husband testifying that he told her, bite your tongue fatso. I dont want to have
to shake your head. It doesnt depend on the truth, but her perception of it.
- 7.6 Getz D charged with felony theft after illegally selling horses. She believed she was selling horses for the
owner. Not the truth of owners words, but her belief.
(2) Legally Operative Words (Verbal Acts) - legal right or duty triggered or offense caused i.e. I do at altar is a
marriage; Ill kill you is a threat, & hes a thief can be slander.
- 7.8 White (6th Cir. 2004) D convicted of making a false dec. form. White wanted his friend to testify that D told
him I have more items to declare. It should have been admitted as a legally operative statement.
(3) Inconsistent Statements Offered to Impeach - simply offered to show inconsistency between two statements at diff
times
(4) Non-assertive words i.e. Ouch
(5) Assertions offered as circumstantial proof of knowledge

B. TO PROVE THE TRUTH OF THE MATTER?

Writings can be hearsay even though less of a perception/memory problem, but person is still not present for demeanor or
cross,
Non-verbal conduct (gestures) can be hearsay Testifies that she asked D about replacing his bike and he rubbed his thumb
and finger together (money).
Declarants own statements can be hearsay, especially if not under oath, demeanor is not observed, & not subject to cross. But
it can still fall under an exception
Courts split on machines as hearsay: Nurse drew blood & computer analyzed it. Computer printout, but medical staff
performed test and input info. *States often rule machines must meet certain standards.
United States v. White - 4th Circuit said not hearsay bc raw data is not statements of operators, but rather the machines
Bullcoming v. New Mexico (2011) Sp Ct held admission of lab report w no operator testimony was a violation of 6A
right of confrontation. *P. 579 rulebook Bullcoming case - If witness testifies to what someone else said out of court violates 6A

Court TV Clip - Work place harassment suit. Testimony offered to show complaints put Co on notice. If offered
to establish the truth of the matter, then hearsay.
7.7 Schwarz (2d Cir. 2002) - 2 officers charged with civil rights violation for assaulting victim; 1 pled guilty;
other is on trial. The D that faced trial now alleges ineffective assistance bc other D told his lawyer that he
would testify and take him out of the incident and his lawyer did nothing with it. D must show (1) lawyer
was deficient & (2) but for deficiency result wouldve been diff. Ct reversed - the possibility of missing
some critical evidence is enough.
2.

Did the declarant assert/communicate the fact? (*note declarants state of mind is important)
- Implied - Laura ought to give that dog a bath naturally conclude that the dog is dirty.

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- Indirect - Deceaseds statement that she spent all morning w/ architect planning her retirement home. She later dies of
drug overdose used to prove she didnt commit suicide
i. Falknor, Hear-Say Rule as a See-Do Rule: Evidence of Conduct (1961) argues for what later became
801(a) hearsay is oral/written assertion or non-verbal conduct if intended as an assertion
- Traffic Light Example: driver is behind a truck and cannot see the light, but when the truck moves
forward so does the driver. This is a non-verbal action of the truck driver, not intended as a statement, his
action to move forward presumably because the light was green.
- Wright v. Tatham (1838) Example: letter offered into evidence that asked D (mental incapacity is an issue)
to handle something for the Parish. It was ruled a non-verbal act that was not hearsay because the letter
writer did not intend to say this man is sane, it was just his thoughts at the time that the man was
competent to handle the proposed matter (no intent to be an assertion).
Case hypo almost as famous as the case: Dockworkers testimony that the captain, after examining
every part of it, embarked on it with his family is circumstantial, not hearsay and it goes to show his
belief that it was seaworthy, not that he was asserting it was seaworthy
Contrasted with: an event when the chairman of the atomic energy commission took his family to the
site of a recent nuclear test accident is different because he is intended this action to assert the sites safe
nature.
ii. A Few Good Men Clip Out-of-court inactions that have no intent to be an assertion can be admitted as a nonhearsay statement. Cruise trying to say victim wasnt being transferred, unlike Colonel is attempting to state,
because there were no phone calls and none of his bags were packed. This is all argumentative & there is no
admission of phone records into evidence but all that notwithstanding, this is out-of-court inactions that are nonhearsay
iii. Miracle on 34th Street Clip - piling letters addressed to Santa Clause to show the post office accepts them thus
their actions show Santa exists - Non-hearsay since actions are not intended as an assertion.
iv. When Mad Cow disease was on high alert, Press reported that Agriculture Minister ate a hamburger with
his daughter and said this is delicious Litigant offers reporters testimony of events. This is an assertion
because hes trying to say that the beef is safe to eat hearsay
v. Scott Peterson Trial, Prosecutor argued Ds failure to tell wife about boat (theory-he dumped her body in the
boat) showed he bought it as part of his murder plan. Testimony of wifes sister & friend to testify she never
mentioned it. Chain: (1) it would be natural for husband to tell wife he bought a new boat; (2) must be a
secretive/evil purpose behind buying the boat. This is basically silence, her failure to tell them wasnt exactly a
communication, she couldnt possibly have tended to communicate anything if the communication was she
didnt know this is not hearsay
vi. Hotel Crack Cocaine Case. Government offered documents with an expert witnesss testimony to show he had
knowledge of how to make these drugs. Prosecutor isnt offering this to prove the ingredients/recipe for crack
cocaine, they are trying to prove his knowledge knowledge alone not hearsay
vii. After being shot, D fired gun into alley, testimony of that is probably not hearsay. Shooting into alley to make
a mark and id person who shot him could be an assertion, but is one thinking that clearly after being shot; not
likely that he intended to communicate anything here, more of a reaction
viii. Police on premises of suspected gambling site, picked up phone, speaker tried to place a bet, prosecutor wanted
this in evidence to prove the premises were a gambling den. No intent on behalf of caller to id the place; officer
is on stand testifying to call and we can test his credibility.
ix. IDs D after being fatally shot -Why did you stab me? - could come in as an exception to hearsay
identification; if done loud/angrily it may have been intended as an assertion
x. After being arrested for cashing a stolen check, another guy walks by and D whispers, I didnt tell them
anything about you. Whispering might not have been intended as an assertion
xi. D on trial charged with poisoning her working-class ex-lover. She claimed he framed her. Crown wants to
enter victims diary to show she met with him and he was not feeling well after. Hes not an acclaimed poet
intending for others to read/publish his diary. It might depend on where he kept the diary. Unless something
indicates he really intended to communicate something, it would not be hearsay. *2/3 judges felt diary was
inadmissible; more of a concern of slippery slope

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a.

HEARSAY FLOWCHART:
If offered to prove
The truth of the matter

If offered to prove the out-of court

speakers intent to communicate/assert

If offered to prove
effect on listener/observers belief

if not an assertion

Not hearsay
Hearsay
If admissible under exception
or excluded from hearsay rule
Inadmissible (802)
403
Possibly admissible

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II.

EXCEPTIONS TO THE HEARSAY RULE - 5 BROAD CATEGORIES:

1. Past Statements of Witnesses - Some scholars think a
witnesss own past statements should always be exempt
bc demeanor is observable & witness can be crossed, but
FREs say they are mostly hearsay bc if not then organized
parties would make records of interviews with
prospective witnesses subject to no cross at that time.
613 v. 801(d)(1)(a): Clip - a woman claimed to be
robbed; cab driver, who drove her home from the crime,
testifies on direct that her bf paid him, but on cross,
defense attempts to impeach him bc he previously told
police she paid his fare. If offered under 613, (declarant
must have tesitifed & lawyer must have good faith belief
of past statement) then it cant be used as evidence of
the truth and would not be allowed in closing.
Rationale: person wasnt in court, no observation of
demeanor, and wasnt subject to cross, thus a counterargument in this scenario is now the person is under oath
and subject to observation of his demeanor
If offered under Rule 801(d)(1)(A) as substantive
evidence, (declarant must testify and be subject to cross
and the statement must be inconcistent and given under
oath at a prior proceeding or deposition) the jury may
consider them for the truth. *801(d)(1)(A) has more
stringent standards for admission, than Rule 613s
impeachment standards
a.

Rule 613: Inconsistent Statements Offered to Impeach

(A) IN EXAMINING A WITNESS CONCERNING HIS/HER PRIOR STATEMENT, WHETHER WRITTEN OR NOT, IT NEED NOT BE
SHOWN NOR DISCLOSED TO THE WITNESS AT THAT TIME, BUT ON REQUEST SHALL BE SHOWN/DISCLOSED TO OPPOSING
COUNSEL.
- The cross-examiner may accept the witness denial of the prior statement or introduce extrinsic evidence
(document/other persons testimony who knows about statement) **Distinction: 608 wont allow a lawyer to
introduce extrinsic evidence to impeach if witness denies it, but this does not apply to 613(a)
(b) EXTRINSIC EVIDENCE OF A PRIOR INCONSISTENT STATEMENT BY A WITNESS IS NOT ADMISSIBLE UNLESS WITNESS IS
AFFORDED AN OPPORTUNITY TO EXPLAIN OR DENY IT & OPPOSITE PARTY IS AFFORDED AN OPPORTUNITY TO INTERROGATE
- If extrinsic evidence is introduced, the witness who made the current & past statements must be given an
opportunity to explain it & opposing party must be given a chance to interrogate witness about extrinsic evidence

i.

Barrett (1976) 613(b) - court takes critical evidence very seriously and defense should be able to put on
impeachment evidence under 613(b) as part of his 6A right. Even though the statement was vague, the jury
could have inferred it was contradictory and that there was reasonable doubt, thus exclusion was error. D charged
with stealing museum stamps. At trial, snitch testified D admitted it to him. D wants to impeach him w 2
witnesses who overheard him say he knew D was not involved.
ii. 7.17 Raymond told police she saw D fire the fatal shot. On direct she testifies she was nowhere near the crime.
She denies every having made the previous statement. Prosecution calls the officer to testify about her statement.
Officers testimony cannot be used substantively, only allowed to show prior inconsistency.
iii. Ince (1994) 403 balancing required for inconsistent statements - Ds friend gave an unsworn statement that
D admitted to firing the gun. Gov. called friend to testify; she said she couldnt remember it even after being
refreshed with her statement. Gov. then called the officer to testify to what she had told him, arguing this was
intended to impeach her credibility, since she claimed she couldnt remember. *Prosecution is trying to get
statement in front of jury. A prior inconsistent statement may not be introduced to impeach one own
witness, thus circumventing the hearsay exclusion, where original testimony was not damaged & testimony
is both prejudicial and lacking probative value (fails 403). A trial judge should rarely, if ever, permit the
government to impeach its own witness by presenting what would otherwise be inadmissible hearsay if that
hearsay contains an alleged confession to the crime for which the defendant is being tried. NOT permissible for
a prosecutor, knowing the witness will say I dont remember, to call another witness to the stand as a

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subterfuge
b.

Rule 801(d)(1)(A): Inconsistent Statements Offered Substantively

A statement is not hearsay if [Prior statement by witness] The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the
declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition
- If the prior statement was made under oath at a proceeding (like a grand jury hearing), it may be
introduced substantively (for proof of what is asserts; i.e. show evidence of Ds guilt)
- If witness says she doesnt remember her previous statement, its not technically inconsistent, but the
judge may rule it is in a DV case
**Recognize the differences between Rule 613 (impeachment) & rule 801(d)(1)(A) (substantive)
i. 7.19 Victim idd person involved at Grand Jury hearing and said he hit her, but at trial she said she ran into a
door. Prosecutor can offer the previous statement into evidence bc it was an inconsistent statement was given
under oath subject to penalties of perjury 801(d)(1)(A). *Rulebook p. 220 conference report no option to
cross any witnesses in front of the grand jury, but the report doesnt say anything about cross.
ii. 7.20 Same facts as above, but now witness says I cant remember - not really inconsistent. Owens prison
guard had lack of memory, but was subject to cross regardless of memory). *Difficult to know if memory loss
claim is true or false so if subject to cross it could go either way.

c.

801(d)(1)(B): Past Consistent Statements

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is consistent with the declarant's testimony and is offered to REBUT an
express or implied charge against the declarant of recent fabrication or improper influence or motive
- Prior consistent statement = any statement by a witness made out of court before the witnesss testimony that
reinforces or support the testimony. This does not need to be made under oath in a proceeding.
- Prior consistent statements by a witness may be introduced substantively if impeachment efforts have suggested that the
witnesss testimony was a recently created lie or was influenced by improper motives. (only to rebut specified attacks on
the witnesss in-court testimony)

Prior consistent statement = any statement by a witness made out of court before the witnesss testimony that
reinforces or support the testimony. This does not need to be made under oath in a proceeding.
Prior consistent statements by a witness may be introduced substantively if impeachment efforts have suggested
that the witnesss testimony was a recently created lie or was influenced by improper motives. (only to rebut
specified attacks on the witnesss in-court testimony)

i.

Anatomy of a Murder Clip lieutenant on trial for murder, claiming temporary insanity; prosecutor witness
testifies about a jail house convo when D said I fooled everyone. Admissible as an admission by party
opponent. At trial, on cross: asks how he came to testify implying deal with the D.A.s officeimplying it
would please his troubles if he dreamed up this story to please the D.A. Admissible as bias/motive to testify.
But suppose prosecutor wants to put on Millers mother to say that he called her from the jail and related this
same conversation. The condition the prior statement had to be made before the alleged motive would have
arisen. So what we would be concerned with here is the timing of the meeting with the D.A.s office.
**It is arguable that anyone in jail has a motive to please the D.A. from the moment they are in there
ii. Tome (1995) Prior consistent statement can only be introduced if the proponent shows (1) the witnesss
testimony has been attacked as recently fabricated or influenced by motive to tell a lie and (2) that the
witness made the prior statement before the time of the alleged fabrication or before alleged motive to lie
arose. Rationale: statements that occurred before the alleged fabrication are more trustworthy. Mother was not
granted her request for sole custody in 89; in 90 she contacted authorities with allegations that her daughter said
dad sexually abused her. D argued the mom lied about the charge to maintain custody. Child testified, but would
not answer Qs on cross. Government produced 6 witnesses who testified about 7 out of court statements the
child made about Ds sexual assault. Ct admitted them under 801(d)(1)(B) bc they rebutted implicit charges that
childs testimony was motivated by a desire to live with her mother. A consistent statement that predates the
motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive.
d.

801(d)(1)(C): Statements of Identification

A statement is not hearsay if [Prior statement by witness] The declarant testifies at the trial or hearing and is subject to

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cross-examination concerning the statement, and the statement is one of identification of a person made after
PERCEIVING the person
- A prior ID by a presently testifying witness is not hearsay, as long as the ID is made after the witness perceived the
perceived. Perceived = aware of; doesnt require that the witness actually SAW the person
- A witnesss out of court statement identifying a person is admissible as substantive evidence of identification if
(1) the witness is presently testifying and (2) is available for cross-examination.
- Rationale: IDs of ppl made prior to trials are likely to be more accurate than IDs made during testimony, so they
should not be excluded from substantive use (closer to the time of the event)

i.

Clip Woman looks at line up and ids her mugger, she eventually picks #3. At trial she repeats it - clearly
admissible as an id. If she said, no I dont remember, that wouldnt affect testimony bc an ID made shortly
after attack maybe is more reliable than when witness testifies at trial because memory of a face fades in
time. Plus over time a persons appearance might change (i.e. lose weight or grow a beard).
ii. Owens (1988) - Prison guard beaten up; identified his attacker while at the hospital. He later lost recollection of
the attack. Victim was allowed to testify to his hospital ID. A witness in a criminal trial may testify about an
earlier ID even if he can no longer testify as to the basis of that ID. The Confrontation Clause only requires the
opportunity for effective cross, not whatever sort of cross D might want. Here, D could have attacked victim on
the basis of his forgetfulness. Subject to cross-examination does not on its face require more. *Note: Ct is
more likely to let in hearsay statements when witness is available for cross, BUT the argument can be made that
when witness cant remember, hes not really subject to EFFECTIVE cross-exam (Cant really probe whether ID
was good or not)
iii. 7.21 abuse claims made to nurse, can she testify about the victims statements? Often identification is like the
clip above, a line up, but it can be a verbal ID or, as here, a comment identifying abuser indirectly, kids dad
came over drunk and hit me with an open hand. no limitation in 801 that says cant apply to stranger!
However the portion of this statement that will be admissible under 801 is the ID portion, not the portion
regarding what he did

2.
a.

iv. 801 v. 804 804 no requirement that the person be unavailable, because declarant is available now (as
opposed to 801)
801(d)(2) ADMISSIONS BY PARTY-OPPONENTS
801(d)(2)(a) PARTYS OWN STATEMENT
THE STATEMENT IS OFFERED AGAINST A PARTY AND IS (A) THE PARTY'S OWN STATEMENT, IN EITHER AN INDIVIDUAL OR
A REPRESENTATIVE CAPACITY
-- A PARTYS OWN WORDS ARE NOT HEARSAY WHEN OFFERED AGAINST HER AT TRIAL

(would be hearsay if offered

in her favor not allowed to bolster own case).
EX: A sues B for damages in an accident caused by B. If B said after the accident, I didnt see the light. A can
introduce that statement as a basis for concluding B did not see the light.
- Confession of a crim D is admissible, but not if it is involuntary.
- Guilty plea is admissible as an admission, but still requires 403 balancing. *guilty plea to minor offense/ no contest
plea not admissible

i. Court TV Clip - Babysitters trial for shaking infant to death; Officer testified, he questioned her right after the
act and she described the baby as fussy and said there bad days when she couldnt get the baby to stop crying.
This is Ds own statement admissible to show possible motive.
ii. 7.11 P claims she couldnt work up to her full potential bc of injuries; D wanted to offer evidence that she
billed clients for lots of hours after the accident. These are her own statements/assertions so they would be
admissible against her claim that she wasnt able to work up to her full potential. BUT they would be hearsay if
offered in her favor. Rationale: most statements offered against an opponent were against opponents interest
when she made them and the inability to cross examine declarant doesnt exist when she is the declarant
iii. 7.12 OJ Simpson said, take my blood test and we will see - verbal act showing confidence in his
innocence, thus this was an assertion which would tend to make this hearsay
b.

801(d)(2)(B): ADOPTIVE ADMISSIONS

THE STATEMENT IS OFFERED AGAINST A PARTY AND IS (B) A STATEMENT OF WHICH THE PARTY HAS MANIFESTED AN
ADOPTION OR BELIEF IN ITS TRUTH

EX: Someone told B after the crash, You didnt stop for the light, and B said Im sorry, I didnt, Bs answer (together
w/ question) would be an adoptive admission.
- Often in police interrogations yes responses and head nods are treated as adoptive admissions of question

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4-Part Test for when silence be deemed an adoptive admission: D (1) heard and understood statement; & was (2)
at liberty to respond/capable of denying it; under (3) circumstances that would naturally call for a response; but (4)
did not respond/communicate denial
i. Clip - insurance fraud insurer implies D burned the insured item; he responds, Im a poor man. An
employee who witnessed the conversation gives the testimony. Prosecution: When he made this accusation to D
was it denied? W: No, he claimed he was a poor person. P: What tone of voice did he have? W: Guilty. P: his
own statement being offered against him to show his admission. **The last question is objectionable though
ii. 7.13 Do you want a 50? An undercover officer understood this to mean a fifty-dollar rock of crack. And
asked to buy another rock. D told him he had one, but he could get another from his buddy. Then D went to a bag
under a bench, removed a large plastic bag, which contained 13 grams of 89% pure crack. No question D was at
liberty to respond and failed to, but what about Q1 of the test did he hear and understand the comment that she
made? Or Q3 of the test did the circumstances necessarily call for a response
iii. Witnessed her father rape and kill her friend Susan. She repressed it and years later it flooded back. Prosecution
argues in closing that D had the opportunity to defend himself when she visited him in jail and instead all he did
was point to a jail notice sign: This station may be monitored. What does that tell you? He does not deny a
false accusation of murder. He was convicted, but on appeal the Court found that because he was exercising his
right to silence so it cannot be used against him.
C.

801(D)(2)(C) & (D): STATEMENTS OF AGENTS usually requires independent evidence

THE STATEMENT IS OFFERED AGAINST A PARTY AND IS (C) A STATEMENT BY A PERSON AUTHORIZED BY THE PARTY TO
MAKE A STATEMENT CONCERNING THE SUBJECT [admissible against corp, but not against individual D unless authorized
or directed to make the statement] OR (D) A STATEMENT BY THE PARTY'S AGENT OR SERVANT CONCERNING A MATTER
WITHIN THE SCOPE OF THE AGENCY OR EMPLOYMENT, MADE DURING THE EXISTENCE OF THE RELATIONSHIP [statements
made by agents within the scope of employment is admissible; no requirement that declarant have personal knowledge of
facts underlying his statement]

i. Pet Wolf - Kid hurt where Ds employee kept a wolf, but no one actually saw how, kid could have been hurt
crawling under fence. (1) Note left on door Sophie bit a child; I need to talk to you = admissible against
employee & center & 403 does not warrant their exclusion and (2) Board mtg minutes discussing Sophie biting
the child = admissible against center (minutes served a representative capacity), but not employee bc he was not
at the meeting.
ii. 7.15 slip and fall on icy walkway someone calls management company to complain and a short time later a
guy shows up to fix it and says those guys on the day shift were supposed to shovel and salt, but they left early.
Is he an employee? He showed up shortly after call, carrying a shovel and bucket & his statement shows
knowledge likely sufficient to show hes an agent/employee speaking in connection with his employment. Not
alone sufficient added a decade after the Bourjaily case
p. 225 Rule 801(d)(2) has been amended in order to respond to three issues raised by Bourjaily . . . Third, the
amendment extends the reasoning of Bourjaily to statements offered under subparagraphs (C) and (D) of Rule
801(d)(2).
the rule as admitted said the contents of the statement shall be considered, but that alone would not be sufficient
to show he was an agent of the company, but it may be considered
d.

801(d)(2)(E) & 104(a): CO-CONSPIRATORS STATEMENTS

801(D)(2) THE STATEMENT IS OFFERED AGAINST A PARTY AND IS (E) A STATEMENT BY A COCONSPIRATOR OF A PARTY
DURING THE COURSE AND IN FURTHERANCE OF THE CONSPIRACY

i. Brothers Keeper Double hearsay - hearsay within hearsay is not excluded if each part of the combined
statements conforms with a hearsay exception. Delberts statement to brother admission. Brothers
statement to trooper possibly as a statement of co-conspirator under 801(d)(2)(E) so long as: (1) the
statement was made when the conspiracy was still active and (2) that it was in furtherance of the conspiracy. If
there ever was a conspiracy, theres no way it was still active when the brother talked to the Trooper. Could
possibly argue that a cover up is part of a conspiracy. BUT it could hardly be said that this instance was in
furtherance of the conspiracy.
ii. Bourjaily (1987) In making a preliminary factual finding under 801(d)(2)(E), a court may consider the out of
court statements which themselves are subject of the admissibility inquiry. Conspiracy to distribute coke. Gov
entered statements made by accomplice implicating D in conspiracy. CL required independent proof (not allowed
to consider the statements), but here the Court ruled that 104 abolished that requirement. Proving a conspiracy:
(1) Judge applies 104(a) to determine if person can be a witness (evaluated by a preponderance of the evidence to

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make sure there was infact a conspiracy); (2) then the Judge applies 104(b) to determine if conditional relevance
is evidence relevant conditioned on fact (the Huddleston standard); (3) then the jury must apply the beyond a
reasonable doubt standard to determine if the conspiracy was committed.
iii. 7.16 Another case of double hearsay Y to N arguably an admission, but how do we know what Y really said
since it was translated? Court could possibly use the statement itself to show the conspiracy was ongoing
and the statement was in furtherance of the conspiracy (Bourjaily). N confessed to an undercover agent that
heroin was coming into the country from Lebanon and tells them his cousin, Y, is coming in from Lebanon to
meet him with a drug briefcase. Undercover agent tries to communicate with Y, but N is the translator because Y
doesnt speak English. Through translation Y says Its so strong when I was packing it my nose started
bleeding. During arrest, gunfire ensues and N is killed. 2nd circuit affirmed ruling the translation was admissible.

3.
A.

HEARSAY EXCEPTIONS UNDER RULE 803: AVAILABILITY OF DECLARANT IMMATERIAL

PRESENT SENSE IMPRESSIONS AND EXCITED UTTERANCES
Under certain circumstances, circumstantial guarantees of trustworthiness are sufficient to justify non-production of
the declarant (even though he may be available)
803(1
)
803(2
)

THE FOLLOWING ARE NOT EXCLUDED BY THE HEARSAY RULE, EVEN THOUGH THE DECLARANT IS AVAILABLE AS
A WITNESS: PRESENT SENSE IMPRESSION. A STATEMENT DESCRIBING OR EXPLAINING AN EVENT OR CONDITION
MADE WHILE THE DECLARANT WAS PERCEIVING THE EVENT OR CONDITION, OR IMMEDIATELY THEREAFTER
Rationale: memory problems are slight
THE FOLLOWING ARE NOT EXCLUDED BY THE HEARSAY RULE, EVEN THOUGH THE DECLARANT IS AVAILABLE AS
A WITNESS: A STATEMENT RELATING TO A STARTLING EVENT OR CONDITION MADE WHILE THE DECLARANT WAS
UNDER THE STRESS OF EXCITEMENT CAUSED BY THE EVENT OR CONDITION.
Rationale: Any motive declarant might have to lie will be overcome by the shock of the starling event, and
memory is also not a problem because the statement must be made close in time to the event

**Theory circumstances may produce a condition of excitement, which temporarily stills the capacity of reflection
and produces utterances free of conscious fabrication. Spontaneity is the key
**Timing duration of the state of excitement (obviously flexible) - statement must occur while the event/condition
is going on or immediately after it occurred
i. The Graduate Clip D thinks hes invited, but she calls the police and claims hes a burglar. Prosecution wants
to admit her 911 call. Possibly under 803(1) present sense impression. Its definitely not an excited utterance
803(2) bc she is not excited unlike grandma ex my goodness hes really flying
ii. 7.29 Dog Mauling Judge OKs Testimony - evidence was pretty strong that D was not controlling her dogs
when it bit apartment neighbor. Neighbor says, That dog just bit me, You need to control your dog. When
husband came home, neighbor said, As I was walking by, the dog lunged at me. I put my hand out and the dog
bit me. Thank god I had my sports watch on. The Judge ruled that all of these statements were admissible as
excited utterances. Even if he rushed right home there would be a temporal disparity bw the event and the
statement (kind of like a cooling off period; the excitement of the moment is over). Arguably she could still be in
the heat of the moment, but this seems to be stretching it.
B.

STATEMENTS OF THEN-EXISTING CONDITION: 803(3)

THE FOLLOWING ARE NOT EXCLUDED BY HEARSAY RULE, EVEN THOUGH DECLARANT IS AVAILABLE AS A WITNESS: A
STATEMENT OF THE DECLARANT'S THEN EXISTING STATE OF MIND, EMOTION, SENSATION, OR PHYSICAL CONDITION
(SUCH AS INTENT, PLAN, MOTIVE, DESIGN, MENTAL FEELING, PAIN, AND BODILY HEALTH), BUT NOT INCLUDING A
STATEMENT OF MEMORY OR BELIEF TO PROVE THE FACT REMEMBERED OR BELIEVED UNLESS IT RELATES TO THE
EXECUTION, REVOCATION, IDENTIFICATION, OR TERMS OF DECLARANT'S WILL

i. Court TV Clip D attempts to get friend to say, yes she did say if Im pregnant with Allens (other man) baby
I have to disappear. It goes to her present attempt to drop out of sight/get of town. Thats why no body has been
found. D didnt murder his wife, she left, that explains these circumstances.
ii. Mutual Life Insurance Co v. Hillmon (1892) before federal rules; still have similar CL exception. Insurance
Co wants to offer letters to show Ps intention to escape. Supreme Court said they should have been admitted to
show Ps then-present intention are admissible on two issues (1) whether declarant had such a plan and (2)
whether he carried out the plan - - - because statements of intention lends probability to the conclusion that the
purpose was fulfilled.
iii. Shepard Courts do not go beyond this line; 803(3) cannot be used to show belief. D, accused of murdering his
wife by poison, offered evidence of her suicidal feelings; Govt rebutted not by showing her will to live, but

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rather her statement of belief that D was killing her Backward looking statement (not one of intention), it
spoke to an act of someone other than the speaker, & it could confuse the jury
iv. Allows statement of fact to show the person believed the fact to be true, but prohibits the use of a persons
statements of feeling to prove the remembered fact is true
- E.g., I saw Bill yesterday admissible to show declarant believed he saw Bill when he made the statement, but
is inadmissible to prove he actually saw Bill the day before the statement
v. Allows proof as to whether a person had a plan and possibly carried it out
- E.g., I went to the movies yesterday is excludable hearsay if offered to prove declarant did go to the movies
the day before (use of a statement of the mental state memory to prove the fact remembered inadmissible)
vi. BUT, the statement made on Thursday that I plan to go to the movies tomorrow is admissible as relevant as to
whether declarant went to the movies on Friday
C.

STATEMENTS FOR MEDICAL DIAGNOSIS: 803(4)

THE FOLLOWING ARE NOT EXCLUDED BY THE HEARSAY RULE, EVEN THOUGH THE DECLARANT IS AVAILABLE AS
A WITNESS: STATEMENTS MADE FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT AND DESCRIBING 1)
MEDICAL HISTORY, OR 2) PAST OR PRESENT SYMPTOMS, PAIN, OR SENSATIONS, OR 3) THE INCEPTION OR
GENERAL CHARACTER OF THE CAUSE OR EXTERNAL SOURCE THEREOF INSOFAR AS REASONABLY PERTINENT
TO DIAGNOSIS OR TREATMENT

Rationale: no sincerity concern; patient will tell the truth to get the correct medical treatment

**Note: a statement of present bodily condition can be made to a layperson, under 803(3)
**To admit, the WHO question, prove that its necessary info for the doctor to reasonably treat patient
i. 7.34 Elder Abuse - man talked to his lawyer to validate firing a caregiver that had pushed him; later that day
went and told his doctor that his caregiver pushed him and made him fall
- Lawyers testimony would not fit the medical exception; but the doctor could testify that he fell and his
his head (Classic 803(4))
- Can the doctor testify that someone pushed him? Doctor might need to know this, how he came to fall,
this would help make a complete diagnosis, so this might come in by arguing it was pertinent to
treatment.
- What if the doctor testified to who pushed him when he fell? Think of doctors duty of care, full and
complete treatment; notion of preventive care.
ii. Iron Shell (1980) - Sexual abuse of 9-yr old. Doctor asked questions during exam, D objects to letting Q&As in.
They were admissible under 803(4) two-part test (1) is Drs motive consistent with the purpose of the rule;
and (2) is it reasonable for the physician to rely on the info in diagnosis or treatment? Rationale: patients strong
motive to tell the truth bc diagnosis/treatment depends on it. A fact reliable enough to serve as the basis for a
diagnosis is also reliable enough to escape hearsay proscription. Goes back to common rationale that people
are open, honest, and forthright in communicating with their doctor. *Court noted it is important here that Drs
questioning did not ask who, but rather what (who is seldom sufficiently related to diagnosis and treatment)
iii. 7.35 Statement by child with broken arm to physician that Daddy twisted my arm was not admissible bc the
who was not reasonably pertinent to diagnosis or treatment. In Iron Shell, the court admitted an assault
victim's statements to her doctor stating the what.
Dissent: child abuse should be considered a medical diagnosis defined by who inflicted the injuries, that
identifications by children are inherently reliable, and that the public policy of this state is to protect children
against abuse.
But, see
- Robinson, 153 Ariz. 191 (Ariz. Apr 07, 1987) (NO. CR-86-0076-PR) D convicted of sexual conduct with a
minor and child molestation. 5 year old victim told her psychologist about the abuse and who had abused
her. Trial court allowed psychologist to testify about victim's statements. Supreme Court applied the two-part
test and found the statements describing the abuse were admissible hearsay because (1) child made the
statement during the course of treatment and nothing in the record indicated that the child's intent was other
than to obtain treatment, and (2) doctor's testimony demonstrated the cause of the injuries and the identity
of her abuser were critical to effective diagnosis and treatment.
- U.S. v. Peneaux (8th Cir. 2005) - if child abuser identified is a member of childs home, should not fall
under the general rule and such statements are valid for proper treatment and diagnosis
- Danaipour v. McLarey (1st Cir. 2004) - statements by young children to doctors are usually reasonably
pertinent to treatment of the child

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- Note **There are rules requiring doctors, teachers, and sometimes even lawyers a duty to report potential
child abuse cases
iv. Young Childrens Understanding of the Physicians role (1999) even children as young as 3 or 4 seem to
understand that you are supposed to be truthful to the doctor
d.

REFRESHING MEMORY AND RECORDED RECOLLECTIONS

803(5)

A MEMORANDUM OR RECORD CONCERNING A MATTER ABOUT WHICH A WITNESS ONCE HAD KNOWLEDGE BUT
NOW HAS INSUFFICIENT RECOLLECTION TO ENABLE THE WITNESS TO TESTIFY FULLY AND ACCURATELY, SHOWN
TO HAVE BEEN MADE OR ADOPTED BY THE WITNESS WHEN THE MATTER WAS FRESH IN THE WITNESS' MEMORY
AND TO REFLECT THAT KNOWLEDGE CORRECTLY. IF ADMITTED, THE MEMORANDUM OR RECORD MAY BE READ
INTO EVIDENCE BUT MAY NOT ITSELF BE RECEIVED AS AN EXHIBIT UNLESS OFFERED BY AN ADVERSE PARTY

612

EXCEPT AS OTHERWISE PROVIDED IN CRIMINAL PROCEEDINGS BY SECTION 3500 OF TITLE 18, U.S. CODE, IF A
WITNESS USES A WRITING TO REFRESH MEMORY FOR THE PURPOSE OF TESTIFYING, EITHER
(1) WHILE TESTIFYING, OR
(2) BEFORE TESTIFYING, IF THE COURT IN ITS DISCRETION DETERMINES IT IS NECESSARY IN THE INTERESTS OF
JUSTICE,
AN ADVERSE PARTY IS ENTITLED TO HAVE THE WRITING PRODUCED AT THE HEARING, TO INSPECT IT, TO CROSSEXAMINE THE WITNESS THEREON, AND TO INTRODUCE IN EVIDENCE THOSE PORTIONS WHICH RELATE TO THE
TESTIMONY OF THE WITNESS. IF IT IS CLAIMED THAT THE WRITING CONTAINS MATTERS NOT RELATED TO THE
SUBJECT MATTER OF THE TESTIMONY THE COURT SHALL EXAMINE THE WRITING IN CAMERA, EXCISE ANY
PORTIONS NOT SO RELATED, AND ORDER DELIVERY OF THE REMAINDER TO THE PARTY ENTITLED THERETO. ANY
PORTION WITHHELD OVER OBJECTIONS SHALL BE PRESERVED AND MADE AVAILABLE TO THE APPELLATE COURT
IN THE EVENT OF AN APPEAL. IF A WRITING IS NOT PRODUCED OR DELIVERED PURSUANT TO ORDER UNDER THIS
RULE, THE COURT SHALL MAKE ANY ORDER JUSTICE REQUIRES, EXCEPT THAT IN CRIMINAL CASES WHEN THE
PROSECUTION ELECTS NOT TO COMPLY, THE ORDER SHALL BE ONE STRIKING THE TESTIMONY OR, IF THE COURT
IN ITS DISCRETION DETERMINES THAT THE INTERESTS OF JUSTICE SO REQUIRE, DECLARING A MISTRIAL

Elements: proponent of record must show the witness (1) had firsthand knowledge; (2) does not have adequate
recollection to testify fully and accurately; (3) made record; & (4) verify the accuracy of statement
-- The record will be read aloud to the jury; the record may be treated as an exhibit at the opponents option if so,
the jury can have it w. them when they deliberate
Rationale: past-recorded recollections cannot be self-proving. if they were, it could lead to abuses of the statement
where witnesses may/may not have accurately recorded facts/details in the first place.
The item used to refresh the witnesss memory is not offered as evidence does not need to comply w/ the best
evidence rule, does not need to he authenticated, and doesnt have to comply with the hearsay rule.
Present recollection refreshed is a testimonial process that has no connection w/ the hearsay doctrine: (1)
questioner can show objects to the witness & ask them if seeing it helps them recall things they once knew; (2)
questioner can show the witness a doc and ask whether it helps the witness come up with a current memory of
some topic if (a) it does help them remember, there is no hearsay issue b/c the doc is not introduced into
evidence; or (b) doesnt help them remember, the witness cannot testify about the subject
The doc that refreshes the witnesss memory is not allowed to be read to the jury or introduced as an exhibit.
However, if it does satisfy the requirements of a hearsay exception it may be admitted.
- Ex: if a witness who took notes of an incident cant remember enough to testify, the notes will be shown in an
attempt to refresh his recollection, if that fails, then the party may seek to introduce the notes as evidence
under 803(5).
Johnson v. State (1998) Witness had given a written statement to the police after the murder, naming D and
making factual assertions, but on the stand he claimed he didnt remember and wouldnt testify that the
statement was correct when he wrote it. The court allowed it to be read into evidence under the past recorded
recollection exception. BUT because the witness did not affirm the statement or anything in it and pastrecorded recollections cannot be self-proven, it was inadmissible hearsay. *Note: If prosecution has a shaky
witness, they should put him before grand jury then it would come in under another exception.
E.

BUSINESS RECORDS: 803(6)

A MEMO, REPORT, RECORD, OR DATA COMPILATION, IN ANY FORM, OF ACTS, EVENTS, CONDITIONS, OPINIONS, OR
DIAGNOSES, MADE AT OR NEAR THE TIME BY, OR FROM INFORMATION TRANSMITTED BY, A PERSON WITH
KNOWLEDGE, IF KEPT IN THE COURSE OF A REGULARLY CONDUCTED BUSINESS ACTIVITY, AND IF IT WAS THE
REGULAR PRACTICE OF THAT BUSINESS ACTIVITY TO MAKE [THAT RECORD], ALL AS SHOWN BY THE TESTIMONY OF
THE CUSTODIAN OR OTHER QUALIFIED WITNESS, OR BY CERTIFICATION THAT COMPLIES WITH RULE 902(11), RULE

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902(12), OR A STATUTE PERMITTING CERTIFICATION, UNLESS THE SOURCE OF INFORMATION OR THE METHOD OR
CIRCUMSTANCES OF PREPARATION INDICATE LACK OF TRUSTWORTHINESS. THE TERM "BUSINESS" AS USED IN THIS
PARAGRAPH INCLUDES BUSINESS, INSTITUTION, ASSOCIATION, PROFESSION, OCCUPATION, AND CALLING OF EVERY
KIND, WHETHER OR NOT CONDUCTED FOR PROFIT.
Rationale: Likely to be more accurate since theyre made for the purpose of running an enterprise rather than for
some purpose in litigation

Business records elements: (1) Entry made at or near time of the occurrence of what it describes; (2) by or from
info transmitted by a person with personal knowledge; (3) Kept in a normal course of regularly conducted
business activity; (4) Must be the regular practice of that business activity to make the record
Rationale: business records are likely to be accurate since they are made for the purpose of running a company and
not for litigation purposes
- The document must be authenticated before its admissible by either (1) witness testimony describing the
records circumstances or (2) written certification by a person w/ knowledge certifying the document meets the 4
requirements (no need for this person to have actually made the record; just must know generally how the records
were kept).
i. Hospital records usually come in under 803(6) - where the patients symptom are reasonably objective, making
the diagnosis cut-and-dry, the doctors diagnostic opinion as contained in the record will come in - Doctor used
anesthesia and patient ends up brain dead because she did not eat a full meal. Is patients admission record
admissible?
If to show records effect on reader (nurse) then non-hearsay
If offered to show the truth of the matter then admissible under 803(4) statement for purposes of diagnosis
or treatment this is exactly the kind of record that this exception is about.
ii. Palmer v. Hoffman (1943) - 803(6) allows business records to be admitted if made in the course of regular
business, but the court would not allow RR accident report into evidence because the purpose of the engineer
report was for litigation purposes, not for the regular management of the business, so it was properly excluded.
RR accident and injury; under customary RR business practices in the case of an accident, the train engineer
made a recorded statement, the train engineer died before trial and RR attempted to introduce statement into
evidence.
Rationale: There is nothing that makes this record reliable. Unlike payrolls, accounts receivable, bills, and the
like, these reports are calculated for use essentially in the court, not in the business.
Note: Motive and opportunity to falsify are the primary factors in using this case to exclude records.
iii. US v. Virgneau (2000) (note before business records exception) records admissibility does not apply to
statements contained within a business record that are made by one who is an outsider to the business where
the statements are offered for their truth because there are no safeguards to assure the truth of statements by
strangers to the business.)
- D convicted of $$ laundering. Trial court allowed government to introduce, for all purposes, the banks money
forms (after sender writes in contact info, amount of transfer, and intended recipient, the clerk signs and dates it
and assigns a computer-generated control number) D allegedly filled these forms out. D argued these were
inadmissible hearsay to id him as the sender.
- Since the forms were not redacted, they should NOT have been admitted for their truth. Note: if there had been
independent evidence that the writer of the forms was D, the statements in those forms would prob constitute
party-opponent admission under 801(d)(2), but there was no evidence offered that the signer was D.
F.

PUBLIC RECORDS AND REPORTS

803(8)

RECORDS, REPORTS, STATEMENTS, OR DATA COMPILATIONS, IN ANY FORM, OF PUBLIC OFFICES OR AGENCIES,
SETTING FORTH (A) THE ACTIVITIES OF THE OFFICE OR AGENCY, OR (B) MATTERS OBSERVED PURSUANT TO
DUTY IMPOSED BY LAW AS TO WHICH MATTERS THERE WAS A DUTY TO REPORT, EXCLUDING, HOWEVER, IN
CRIMINAL CASES MATTERS OBSERVED BY POLICE OFFICERS AND OTHER LAW ENFORCEMENT PERSONNEL, OR
(C) IN CIVIL ACTIONS AND PROCEEDINGS AND AGAINST THE GOVERNMENT IN CRIMINAL CASES, FACTUAL
FINDINGS RESULTING FROM AN INVESTIGATION MADE PURSUANT TO AUTHORITY GRANTED BY LAW, UNLESS
THE SOURCES OF INFORMATION OR OTHER CIRCUMSTANCES INDICATE LACK OF TRUSTWORTHINESS

803(10
)

TO PROVE THE ABSENCE OF A RECORD, REPORT, STATEMENT, OR DATA COMPILATION, IN ANY FORM, OR THE
NONOCCURRENCE OR NONEXISTENCE OF A MATTER OF WHICH A RECORD, REPORT, STATEMENT, OR DATA
COMPILATION, IN ANY FORM, WAS REGULARLY MADE AND PRESERVED BY A PUBLIC OFFICE OR AGENCY,
EVIDENCE IN THE FORM OF A CERTIFICATION IN ACCORDANCE WITH RULE 902, OR TESTIMONY, THAT

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DILIGENT SEARCH FAILED TO DISCLOSE THE RECORD, REPORT, STATEMENT, OR DATA COMPILATION, OR
ENTRY.

i. A Few Good Men - flip to the page of the book that discusses code reds no code, regulation, or manual on
code reds. The absence of something in a training manual used to show that the officer did whatever he did on
his own
- Non-verbal conduct is sometimes an assertion i.e. absence of complaints is not an assertion and not hearsay bc
its not obvious that lack of complaints really asserts that the product is okay.
ii. Beech Aircraft - Navy plane crash and the spouses of pilots killed sued for products liability. Is the report made
by Navy JAG admissible? The problem is that the findings of fact contain not only facts but opinion. *803(8)(C)
- House Judiciary Committee said the phrase factual findings [should] be strictly construed and that
evaluations or opinions contained in public reports shall not be admissible under this Rule., but the Supreme
Court found that the provision for escape is in the Rules final: evaluative reports are admissible unless the
sources of information or other circumstances indicate lack of trustworthiness. And a broad approach to
admissibility is also consistent with the Federal Rules general approach of relaxing the traditional barriers to
opinion testimony.
Holding: portions of investigatory reports otherwise admissible under 803(8)(C) are not inadmissible merely
because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and
satisfies the Rules trustworthiness requirement, it should be admissible along with other portions of the report.
Fn 11 advisory committee proposed list of factors
iii. Police Reports and Business Records p. 547 -552 - Rule 803(8) does not extend to the reports of police or
evaluative reports if offered against the D in criminal cases. Police reports are also commonly excluded under
803(6) [Business Records Exception] b/c they are not objective. They do not have an independent purpose & are
thus less trustworthy
iv. Circuit Cases:
United States v. Oates report offered by gov chemist; gov chemist considered other law enforcement
personnel. Advisory Committee: In one respect the rule with respect to evaluative reports under 803(8)(C)
is very specific: they are admissible only in civil cases and against the government in criminal cases in view
of the almost certain collision with confrontation rights which would result from their use against an accused
in a criminal case.
-- We should be wary of police reports involving criminal investigations to come in under 803(8)(B) and
803(8)(C). See pg 547. *803(8)(C) amended bc of Ds right to confrontation
United States v. Hayes - IRS tax examiner who testified at trial. Testimony offered into evidence as a business
records exception. 803(8) only intended to apply to observations made by law enforcement officials at the
scene of a crime or in investigating a crime, and not to reports of routine matters made in nonadversarial
settings.
United States v. Weiland - You cant use 803(6) as a backdoor to get in a report thats not admissible under
803(8). Yet the court said that some of the information (fingerprint card and prison photo) were admissible.
This is information about the defendants prior convictions.
- The court said this was done as a matter of routine. So it could come in. It was not done in an adversarial
setting. The Court kind of ran in between Oates and Hayes
4.

804(A) HEARSAY EXCEPTIONS APPLICABLE ONLY WHEN THE DECLARANT IS UNAVAILABLE

804(A): Unavailability defined. A DECLARANT IS UNAVAILABLE IF HE: (1) HAS A PRIVILEGE PERMITTING HIM TO REFUSE
TO TESTIFY; (2) REFUSES TO TESTIFY ABOUT THE SUBJECT MATTER OF THE STATEMENT; (3) CANNOT REMEMBER THE
SUBJECT MATTER; (4) DEATH OR ILLNESS; OR (5) IS ABSENT & PROPONENT HAS BEEN UNABLE TO PROCURE HIS
ATTENDANCE BY PROCESS OR OTHER REASONABLE MEANS

BUT, 804(A) TREATS A DECLARANT AS NOT UNAVAILABLE IF ITS SHOWN THAT PROPONENT IS RESPONSIBLE FOR
CREATING THE CONDITION THAT WOULD OTHERWISE MEET ONE OF 804S DEFINITIONS OF UNAVAILABILITY
A.

804(B)(1): PAST TESTIMONY

TESTIMONY GIVEN AS A WITNESS AT ANOTHER HEARING OR DEPOSITION (ON COMPLIANCE WITH LAW), IF THE PARTY
AGAINST WHOM THE TESTIMONY IS NOW OFFERED, OR, IN A CIVIL ACTION OR PROCEEDING, A PREDECESSOR IN
INTEREST, HAD (1) AN OPPORTUNITY & (2) SIMILAR MOTIVE TO DEVELOP TESTIMONY BY DIRECT, CROSS, OR
REDIRECT

Opportunity
7.23 It was a civil suit and now there are criminal charges D had the same opportunity, but not the same motive

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bc crim charges are much more serious (other things to consider would insurance have covered him for civil
liability, was plaintiffs liability theory similar to criminal charges?
Similar Motive - whether the party resisting offered testimony had, at a prior proceeding, an interest of substantially
similar intensity to prove/disprove the same side of a substantially similar issue.
7.22 Grand jury testimony did not meet the exception because even though the witness was arguably
unavailable under 804(a)(2), the party against whom the testimony was offered did not have an opportunity &
similar motive to develop the testimony by direct, cross, or redirect since neither D nor Ds attorney was present
during the grand jury testimony.
Predecessor in Interest - If it appears that a party in a former suit having a like motive to cross-examine about the
same matters as the present party, was accorded an adequate opportunity for such examination, the testimony
may be received against the present party. *Privity or common property interest between parties is not necessary.
Lloyd v. American Export Lines (1978) Lloyd sued co bc they didnt protect him from Alvarez. Alvarez
counter-claims then Lloyd dropped claim. Co wants to use Lloyds transcript from the previous coast guard
hearing. Although, congress didnt furnish a definition, the 3rd circuit ruled there was a sufficient community of
interest shared by the coast guard in its prior hearing and Alvarez in the subsequent civil trial. A similar nucleus
of operative facts and the same basic interests was enough to make the first party a predecessor in interest to the
second party. Dissent: Predecessor in interest is a term of art to be construed narrowly as one who is in privity.
It does not matter that the Coast Guard had merely the same motive, he did not have the duty to represent
Alvarez. His search was for the truth, not to win, and so he was not bound to explore all possible avenues.
B.

804(B)(2) DYING DECLARATIONS

IN A PROSECUTION FOR HOMICIDE OR IN A CIVIL ACTION OR PROCEEDING, A STATEMENT MADE BY A DECLARANT WHILE
BELIEVING THAT THE DECLARANT'S DEATH WAS IMMINENT, CONCERNING THE CAUSE OR CIRCUMSTANCES OF WHAT THE
DECLARANT BELIEVED TO BE IMPENDING DEATH.
SHEPARD TO MAKE OUT A DYING DECLARATION THE DECLARANT MUST HAVE SPOKEN WITHOUT HOPE OF RECOVERY AND
IN THE SHADOW OF IMPENDING DEATH

**Davis: Stonewall Jackson before he died said let us cross the river and rest in the shade of the trees
i. Clip - Audrey Hepburn discovers body of an acquaintance smothered to death. Near his outstretched hand, the
word "DYLE" is scrawled. Mr. Dyle later is put on trial for killing the man.
Defense: we dont have any proof that we thought his death was imminent
Prosecution: he did have a plastic bag over his head
ii. Shakespeare, On Truth & Dying: Wigmore traced hearsay to the late 17th century. Shakespeare offered more
than one reason to trust the words of the dying more than ordinary hearsay.
Richard II, Art II, I, 1-8 John of Gaunt: O, but they say the tongues of dying men Enforce attention like deep
harmony. Where words are scare they are seldom spent in vain, For they breathe truth that breather their words in
pain.
King Joh, Art V, iv. 10-61 Melun: What in the world should make me now deceive, Since I must lose the use of
all deceit? Why should I then be false, since it is true That I must die here and live hence by truth.
iii. 7.28 Mattox (1892) attending physician remained with the wounded man until 1am. Between 8 and 9am,
Mattoxs mother was present. The doctors opinion was that he did not think the man would make it. The man
then said, fairly close in time, I know your son Mattox and he did not shoot me, I saw the parties who shot me
& he was not one of them. The point is to ascertain the state of the mind at the time the declarations were
made. Dying declarations are justified upon the ground of necessity, and the certain expectation of almost
immediate death will remove all temptation to falsehood, and enforce as strict adherence to the truth as the
obligation of an oath could impose. But the evidence must be received with the utmost caution, and if the
circumstances do not satisfactorily disclose that the awful and solemn situation in which he is placed is realized
by the dying man because of the hope of recovery, it ought to be rejected. In this case the lapse of time was but a
few hours; the wounds were three in number and one of them of great severity; the patient was perfectly
conscious, and asked the attending physician his opinion, and was told that the chances were all against him, and
that the physician thought there was no "show for you [him] at all." He was then interrogated as to who did the
shooting, and he replied that he did not know.
iv. Shepard (1933) Dr claimed his wife committed suicide. Wife said, Dr. Shepard poisoned me she didnt really
know for sure, so some question of personal knowledge. Her statement of conclusion does not mean it should be
excluded, but there was no other evidence and theres too high a risk of confusion it would be too
prejudicial/damaging.

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v. Afterthoughts: Justice Cardozo felt that homicide may not be imputed to a D on the basis of mere suspicious
even though they are suspicions of the dying
--Contrast mere suspicions with earlier case, Sophie bit a child that was arguably no better informed than
Mrs. Shepards conclusion, but the former was deemed admissible. The distinction is that the wolf example
concerned statements of aparty-opponent which is governed by the this-is-war rationale
vi. Liang, The Legal Mythology of Dying Declarations (1998) The idea that dying declarations are reliable bc
people who know they are about to die speak the truth is irational. *For example, traume victims are oxygen
deprived and often speak nonsensically.
C.

804(B)(3) STATEMENTS AGAINST INTEREST

A STATEMENT THAT: (A) A REASONABLE PERSON IN THE DECLARANTS POSITION WOULD HAVE MADE ONLY IF THE
PERSON BELIEVED IT TO BE TRUE BC IT WAS SO CONTRARY TO DECLARANTS PROPRIETARY/PECUNIARY INTEREST OR
HAD SO GREAT A TENDENCY TO INVALIDATE DECLARANTS CLAIM AGAINST SOMEONE ELSE OR EXPOSE DECLARANT TO
CIVIL/CRIMINAL LIABILITY; AND (B) IS SUPPORTED BY CORROBORATING CIRCUMSTANCES THAT CLEARLY INDICATE ITS
TRUSTWORTHINESS, IF IT IS OFFERED IN A CRIMINAL CASE AS ONE THAT TENDS TO EXPOSE THE DECLARANT TO CRIMINAL
LIABILITY.

Rationale: When someone says something detrimental to a very important interest, its likely true because
people rarely say something carelessly or falsely involving a subject that could be personally harmful
*Note Rule 804(b)(3)(B) expressly requires the exclusion of out-of-court statements offered to exculpate the
accused unless there are corroborating circumstances that "clearly indicate" the trustworthiness of the
statement.
i. Fatal Attraction Clip Michael Douglas confesses to wife about his affair with a woman; the wife is now on
trial for the womans murder. Statement? Prosecutor wants to offer Douglas to testify about his confession.
Why? To show motive. Hearsay problem? Regardless of the truth, we are only concerned with the effect it had
on the wife, Not hearsay because not offered to prove the truth
BUT suppose husband is charged and prosecutor wants wifes testimony of his confession. Same purpose motive. Hearsay problem? The statement would have to be true because he said the words, he would only
have a motive if in fact he did have an affair, So this is hearsay. Exception? Maybe a party admission
BUT suppose husband is found dead and the mistress is charged with his murder. Prosecutor wants the wife to
testify about confession. Same purpose motive. Hearsay problem? Its being offered to show truth of the
matter asserted, so this is hearsay. Exception? Maybe Statement against Interest reasonable person would
have only said it if he believed it to be true bc its so contrary to the declarants proprietary (property
interest) or pecuniary interest (if adultery were a crime; potential divorce/fault ground/loss of assets)
ii. Presumed Innocent Clip Ford replies, "You're right. I did it." BUT now someone else has been charged with
the murder, and D wants the D.A. on the stand to testify to Ford's statement.
Defense Statement against interest: people dont go around saying, yeah I killed so-and-so.
Prosecution He wasnt serious; the two had an antagonistic relationship
**Judge might allow this in. Prosecution could insist that defense must show corroborating circumstances to
establish statements trustworthiness not prove the truth but tend to establish it.
iii. 804(b)(3)(B) - A statement tending to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the
statement. Fed. R. Evid. 804(b)(3)
Amendment proposed, but not adopted, to explain corroborating circumstances (803(24) and 804(b)(5)
merged into 807) United States v. Hall, 165 F.3d 1095 (7th Cir. 1999) (1) timing & circumstances under
which the statement was made, (2) declarants motive to make it & if there was reason to lie, (3) whether
declarant repeated it & did so under other circumstances (not an isolated occurrence); (4) party or parties to
whom it was made; relationship bw declarant & opponent of the evidence, (5) nature & strength of independent
evidence (when taken together w other evidence might help support the statements trustworthiness)
Several additional factors that may be considered in determining whether hearsay testimony has sufficient
"guarantees of trustworthiness." Including: (1) declarants character for truthfulness & honesty & availability of
evidence on issue; (2) whether testimony was given voluntarily, under oath, subject to cross, and a penalty for
perjury; (3) extent to which the testimony reflects his personal knowledge; (4) whether witness ever recanted his
testimony; & (5) whether statement was corroborated. FN. In 1997, the contents of Rule 803(24) and Rule
804(b)(5) were combined and transferred to the new Rule 807. With the exception of the additional requirement
under Rule 804(b)(5) that the declarant be unavailable, the text of the two former rules was virtually identical.
None of the statements indicate that [witness] had unique knowledge of the crime bc statements did not

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contain specific details unknown to the public. His statements were not corroborated by any physical evidence or
eyewitness testimony. Additionally, [witness] recanted his statements and passed a polygraph exam in which he
proclaimed his innocence. Finally, except for [witness] statement, the dates provided cannot be established with
any degree of reliability. Thus, these factors clearly support the district court's conclusion that the proffered
hearsay testimony lacked "trustworthiness.
iv. Brothers Keeper Clip - repeat - a state trooper relates a convo w Lyman, Delberts brother; Lyman told a convo
w Delbert about killing Bill to put him out of misery and how he would do it. Statement against Interest bc surely
its against his penal interest to implicate himself in a crime
v. Williamson v. United States (1994) Harris stopped in a car with LOTS of cocaine. He said he was delivering it
to Williamson (other evidence linked Williamson to it). Harris refused to sign a statement or testify. Agent
related Harris statements into the record. Statements against penal interests cannot be used to collaterally
incriminate third parties under 804(b)(3), unless the statements were truly self-inculpatory and not selfserving. The principal behind 804 is that even dishonest people tend not to make self-inculpatory statements
unless they believe them to be true. 804 cannot be read to mean that collateral statementseven ones that are not
in any way against the declarants interestare admissible. *It does not allow non-self-inculpatory statements.
The Q to ask is whether the statement was sufficiently against declarants penal interest such that a reasonable
person in his position would not have made it unless believing it to be true. Harris confession did little to subject
himself to criminal liability, and reasonable person in his position might even think that implicating someone else
would decrease his exposure to criminal liability.
Concurrence: Advisory Committee suggests not all collateral statements are admissible, and contemplates the
exclusion of collateral self-serving statements, but allows collateral neutral statements. A self-serving statement
is one that tends to reduce or mitigate potential for punishment; neutrals are where two or more are capable of
committing a crime and the declarant simply names the parties.
vi. 7.25 someone reports a car leaving the scene & it is traced to Ds house; D blurts out the restaurant hired him to
start the fire, but bc there was a family upstairs he only poured a little gas. *Note amendment was passed and
approved and is now a part of the federal rules 804(b)(3) is now divided into 2 paragraphs prosecution if
offering a statement such as the one in this problem, would have to show corroborating circumstances as well.
Judge in this case, seemed somewhat sensitive to the Williamson problem, in that he did not allow the
entire statement to come in.
vii. 7.26 Sister testified, her brother, later murdered, came to her house asking for lemon juice bc he heard lemon
juice removes gun residue and he robbed a bank at gunpoint. The statement was made to the sister, the statements
in Williamson were made to police, does that make a difference? Williamson p. 472 language arrest statements
of a co-D have traditionally been viewed with special suspicion so this does make a difference, but certainly
they were statements against interest. Could argue the facts are distinguishable between this problem and
Williamson since the statements werent made to the police
D.

804(B)(6) FORFEITURE BY WRONGDOING

A STATEMENT OFFERED AGAINST A PARTY THAT HAS ENGAGED OR ACQUIESCED IN WRONGDOING THAT WAS INTENDED TO,
AND DID, PROCURE THE UNAVAILABILITY OF THE DECLARANT AS A WITNESS
-- INSTEAD OF SAYING WAIVER (IMPLIES CONSCIOUS DECISION) USE FORFEITURE
-- REMEMBER, THESE STATEMENTS ARE ONLY ADMISSIBLE IN THE EXTREME, ONLY WHEN THE DECLARANT IS UNAVAILABLE
FOR ONE OF THE STATED REASONS IN SUBSECTION B, FORCING THE CHOICE TO COME DOWN TO AN ALL-OR-NOTHING
DECISION

i.

United States v. Gray (2005) court must find by a preponderance of the evidence that (1) D engaged or
acquiesced in wrongdoing (doesnt have to be a crime); (2) intended to render declarant unavailable as a witness;
& (3) it did have that result. D objects bc she wasnt intending to make him unavailable for this trial. Rule
doesnt talk about a particular trial, just general intent to make the witness unavailable at a trial. *Q is
were you responsible for making this person unavailable for trial (any
trial)
Dhinsa (2nd Circuit) rule may apply where declarant was only a potential
witness
Cherry (10th Circuit) statements may be admitted against a person who
participated in a conspiracy to silence declarant even if that person did
not engage in witness intimidation/wrongdoing
Steel v. Taylor (6th Circuit) any significant interference with declarants
appearance as a witness, including the exercise of persuasion and control or an instruction to invoke the 5 th

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amendment privilege, amounts to wrongdoing that forfeits the defendants right to confront the declarant
5.

807 RESIDUAL EXCEPTION

A STATEMENT NOT SPECIFICALLY COVERED BY RULE 803/804 BUT HAVING EQUIVALENT CIRCUMSTANTIAL GUARANTEES OF
TRUSTWORTHINESS, IS NOT EXCLUDED BY THE HEARSAY RULE, IF THE COURT DETERMINES THAT (A) THE STATEMENT IS
OFFERED AS EVIDENCE OF A MATERIAL FACT; (B) THE STATEMENT IS MORE PROBATIVE ON THE POINT FOR WHICH IT IS
OFFERED THAN ANY OTHER EVIDENCE AVAILABLE THROUGH REASONABLE EFFORTS; & (C) FRES GENERAL PURPOSES &
INTERESTS OF JUSTICE WILL BEST BE SERVED BY ADMISSION. HOWEVER, THE PROPONENT MUST MAKE THE STATEMENT
KNOWN TO THE ADVERSE PARTY SUFFICIENTLY IN ADVANCE OF THE TRIA/ HEARING TO PROVIDE ADVERSE PARTY W A FAIR
OPPORTUNITY TO PREPARE TO MEET IT, THE PROPONENT'S INTENTION TO OFFER THE STATEMENT AND THE PARTICULARS OF
IT, INCLUDING THE NAME AND ADDRESS OF THE DECLARANT. **(Stand-alone, residual; catchall exception).

i. Dallas County v. Commercial Union - residual exception case cited by rulebook; Court says we dont
characterize this as under any hearsay exception, it is admissible because it is necessary and trustworthy, relevant
and material, and within the discretion of the trial judge.
- Dispute b/w Dallas County and insurance company, concerning whether charred timber damage was caused by
lightening strike or from an old fire. They try to admit as evidence a newspaper article that was written in 1901
about that fire. The court did not characterize it as a business record or ancient document, but rather as something
necessary, trustworthy, relevant, and material. **Basically creates a residual exception here before it was
codified
ii. Clip - SIMULATED interview of a child who has been sexually abused. It is used in training clinical social
workers. Defense: anatomically correct doll? Leading questions? If child was present to testify than maybe she
should. Prosecution: It is offered to show a material fact that is probative since she is the only one who can
testify to this the interest of justice
iii. United States v. Laster (2002) Interpreting not specifically covered some disagreement; this court liberally
construes the language: under 807, an equally trustworthy statement not covered by 803/804
is admissible if it is material, more probative than any other evidence, and its admission
serves the interest of justice. (sometimes referred to the near-miss rule it doesnt
quite make it under one of the exceptions, but looking at the big picture it should be admissible).
Ds charged with making meth. Gov tried to introduce records of Oil co for purchase orders of meth components.
Detective had to intro cos business records bc cos sole owner/operator died. Other than a few brief convos w
owner/operator he did not have much connection with the company. Use of these records under the
business record exception was not admissible here because the detective was
not a party to this business and knew nothing of the business, but the lower
court did not err in admitting the documents under the residual hearsay
exception of 807 as there was no indication that the records were not reliable.
**Note: this case establishes Rule 807 as a stand-alone exception to the hearsay rule,
subject to its own analysis. Prof: If the records are not reliable enough to come in
under the business record exception, how are they then reliable enough for 807? (policy Q
- if we dont let this evidence in, the D would go free.)
Rule 804 p. 277: Exception 803(24) transferred to Rule 807
-----------------------------------------------------------UNIT 2: RELIABILITY CHAPTER 8 CONFRONTATION AND COMPULSORY PROCESS
UNIT 2: RELIABILITY CHAPTER 8 CONFRONTATION CLAUSE
THE CONFRONTATION CLAUSE - guaranteed right for criminal D to confront opposing witnesses
A Few Good Men Clip - Right before you cant handle the truth; Nicholson gets off the stand. Cruise says, excuse me
Im not through with you yet. Sit down. *Illustrates that its not for the witness to decide when to stand up and leave, but
rather the lawyer who is conducting the examination
History: at the very least drafters intended to assure criminal Ds right to be present at his trial, learn what evidence is
being introduced against him, and to question those who give live testimony
A.

EVOLUTION OF CONFRONTATION CLAUSE CASE LAW

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i. MATTOX ERA - Mattox (1895) Supreme Court remanded; before trial 2, two witnesses died, so gov entered
court reporters transcribed notes. Classic 804(b)(1) exception of former testimony, but at this time FREs didnt
exist yet. Admission was proper bc the purpose of right of confrontation is to put the witness in the courtroom,
place him under oath with consequences of perjury, subject him to cross, & allow the jury to observe his
demeanor. Court said D had all these abilities present during this initial testimony. **This is an old case but it
is still good law.
1. Pointer v. Texas (1965) the Confrontation Clause applies to state trials as well as federal trials
2. California v. Green (1970) witness testifies at Ds preliminary hearing, identifying D as supplier, but
at trial he changes his story. Gov. uses preliminary hearing transcript to contradict his present testimony.
D had the opportunity to cross the witness at the preliminary hearing. Confrontation Clause demands are
satisfied even if witness is unavailable at a later trial
ii. ROBERTS ERA - Roberts (1980) no longer good law held that if declarant was proved unavailable & there
were indica of reliability than the statement could be admissible
1. Craig child testified through closed-circuit tv under oath, subject to cross, & observable by the jury;
the only thing missing was face to face & eye to eye bw the accused and the accuser. OConnor majority
upholds the testimony, but notes that a later public policy individualized determination could change
this.
J. Scalia dissented sheds light on his strict vision of the Confrontation Clause; a barrier bw D &
witness is explicitly forbidden by the constitution & theres no room for interpretation.
iii. CRAWFORD ERA - Crawford v. Washington (J. Scalia 2004) - Crawford stabbed a man he claimed tried to
rape his wife. Wife claims marital privilege. Prosecution offered her police statement to show Ds violent
nature to contradict Ds self-defense argument. He appealed conviction claiming his 6A right was violated.
State Sp Ct relied on Roberts and upheld conviction. 6A directed at use of ex parte examinations as evidence
against the accused (principle evil). Court overruled Roberts replacing reliability and trustworthiness with
opportunity to cross. 6A gives Ds the right to confront witnesses and cross their testimony. This includes
testimony police gather. **Crawford Limitations: (1) applies only to criminal cases and (2) doesnt apply if
witness testifies at trial or if statements are non-testimonial
Major Rule: If the statement is testimonial it may not be admitted against the accused in the absence of the
declarants presence and availability for cross at trial unless the declarant is unavailable to testify at trial
AND the accused had a prior opportunity to cross the declarant about the statement
EX: Simulated child abuse interview - Julie is ruled emotionally unavailable to testify. Can we introduce
videotape of interview? (1) Hearsay? Yes, offered to prove the truth of the matter asserted. (2) Does it
raise a confrontation question? (a) Under Crawford, was it testimonial? This wasnt a police officer
questioning her, it was a social worker or counselor, and wed have to know the interviews purpose and
the investigations stage.
Prosecutor: not testimonial, but even if it was this is an ongoing emergency bc shes living with parents &
the counselor is trying to help, not pursue an investigation. Defense: the questioning took part as part of
the investigation process in looking to prosecution Judge Davis: could go either way here depends on
case circumstances. *Note: In Davis & Hannan even some police statements can be non-testimonial.
Domestic Violence Cases Face New Test Ruling That Suspects Can Confront Accusers Scares Some
Victims From Court (2004) concern that, esp. in domestic violence cases, victims are afraid to testify.
In both Davis and Haman the absent victim necessitated using the substitute for victims actual testimony.
So, after Crawford this is going to become an even greater problem.
Ds Counter Argument: it levels the playing field - Were not willing to convict on the words of someone
else. We want to look you in the face and determine whether or not you are lying.
b.

CONFRONTATION CLAUSE Where the prosecution tries to take an out-of-court testimonial statement by W and
use it against D, it wont be admissible if W isnt available even if a hearsay exception applies. Requires W to be
subject to cross, not necessarily at the time of the statement.
i. Testimonial Meaning
- Crawford: Where testimonial evidence is at issue 6A demands, what CL requires, unavailability and prior
opportunity to cross. We leave for another day any effort to spell out a comprehensive definition of testimonial.

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It applies at a minimum to prior testimony at a preliminary hearing, grand jury trial, & police interrogations.
Statements are non-testimonial made during police interrogation attempting to provide assistance to meet an
ongoing emergency.
- The Court later clarified in Davis/Hannan: declaration made during official interrogation will be
testimonial if primary purpose is to establish or prove past events potentially relevant to later criminal
prosecution
1. Davis (J. Scalia & all 9 agree) - (1) victim was speaking about events as they were happening; (2)
reasonable listener would recognize that victim was facing an ongoing emergency; (3) nature of Q&A
elicited statements necessary to help resolve present emergency; (4) Crawford victim was calm at the
station house, whereas Davis victim was frantic on the phone in an unsafe environment. 911 call
circumstances & Qs were to enable police assistance in an ongoing emergency, thus nontestimonial. **Note Judge Greenbergs opinion: 911 calls arent investigations; people reaching out
to help; callers arent contemplating being a witness; they are hurried and panicked & not equivalent to
a formal pretrial examination
2. Hammon: (8 agree) police arrive to aftermath of domestic violence dispute; they talk to them separately
and the wife signed a battery affidavit. (1) Emergency was over, (2) interrogation was looking for
criminal conduct; formal enough to be in separate rooms. Even though Crawford interrogation was
more formal (Miranda warning; tape-recorded; at station), the purposes were the same nail down the
truth about past criminal conduct.
J. Thomas Dissent: limit testimonial to formal testimonial materials: easier to apply & more predictable
results. White v. Illinois (1992, overruled) set forth Thomas view that 6A is implicated by out-of-court
statements only if they are in formal testimonial materials such as affidavits, depositions, prior
testimony, or confessions
3. 3 reasons for doubt that Crawford is favorable for Ds: (1) The Courts new primary-purpose test cuts
clearly for Ds only when there is no ongoing emergency I.E. Bryant any kind of argument for an
ongoing emergency; (2) likely application of primary-purpose test to questioning child victims in sex
abuse cases (childs answers likely to be nontestimonial even if parent/doctor also intended to turn info
over to the authorities); (3) with the demise of Roberts, any judgment that hearsay statements are
nontestimonial will likely leave Ds with no constitutional protection against their admission, however
unreliable they may be.
4. Courts recent broad interpretation of testimonial: Bullcoming v. New Mexico (2011) (J.
Ginsburg) B.A.C. results for a DUI case, lab report introduced not be administering tech, but by
someone familiar with the process; 5 member plurality held it inadmissible. FN 6 defines testimonial
broadly (like Davis and Hammon definition): To rank as testimonial, a statements primary purpose
must be to establish or prove past events potentially relevant to later criminal prosecution. Elaborating
on the purpose for which a "testimonial report" is created, we observed in Melendez-Diaz that business
& public records are generally admissible absent confrontation because, having been created for the
administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial,
they are not testimonial."
5. Courts broad interpretation of an ongoing emergency: Michigan v. Bryant (2011) (HO) - Police
arrived to scene and found a man with a gunshot wound lying outside his car. He tells them who shot
him and where the shooting took place. He later died. Court held the evidence was nontestimonial
because it was during the course of an ongoing emergency; therefore admissible as a dying declaration.
Shaky majority led by J. Sotomayor ruled the statements nontestimonial because the gunmans
unknown motives intentions, and location created an ongoing emergency. Justices Cannot Agree on
Scalias primary purpose test - Scalia who has been writing the majority, writes the dissent in
Michigan (if his test really is so easy then why is he discontented with this holding) - Todays tale, a
story of five officers conducting excessive examinations, with the purpose of protection is so
transparently false that professing to believe it demeans this institution.
If the Sp Ct cant agree then how are trial judges supposed to rule. Essentially underscores the relevance
of J. Thomass test here, the broad view of testimonial is hard to predict
6. Whorton v. Bockton (2007) made clear that Crawford is not only new, but flatly inconsistent w Roberts
bc the Courts overruling of Roberts was not initially clear, quite a few lower courts continued to apply
it.
7. Lab reports by law enforcement personnel are testimonial. Melendez-Diaz (2009)

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ii. Rule of Forfeiture: remedy if someone causes a witness to be unavailable to testify at trial is that person
loses 6A right to confrontation. Crawford (reiterated in Davis): the rule of forfeiture by wrongdoing . . .
extinguishes confrontation claims on essentially equitable grounds. Could be broad or narrow depending on
prosecutors proof requirement to show Ds purpose was to make declarant unavailable as a witness.
1. Intent: Giles: D killed former gf; state court ruled he forfeited his 6A right & prosecution did not need
to prove his purpose in killing her. Crawford & Davis framed the forfeiture rule as equitable, thus Ds
wrong was enough to trigger it bc no one should profit from their wrongs. Sp Ct 6-3 ruled the
prosecution must show Ds motive was to prevent the witness from testifying. Opinion showed the
lack of consensus among the Court.
J. Thomas concurred asserting his view in White v. Illinois the Confrontation Clause applies only to
such formalized hearsay as past testimony and custodial, Mirandized police interrogations
J. Breyer dissented finding no support that the forfeiture rule mandated proof of Ds purpose. The
maxim is no one shall be permitted to take advantage of his own wrong. Even a D who killed in anger
and not with the purpose of eliminating a witness has committed a wrong from which he should not
profit
**Note: in the modern realm of domestic-violence prosecutions, the justices seem prepared to infer
from the history of abuse Ds purpose to keep his victim from the witness stand.
Difficulties posed for domestic-violence prosecutions: J. Ginsburg in Davis recognized that many battered
victims never show for trial. BUT J. Scalia responded sarcastically, maybe we should just suspend the
confrontation clause in spousal abuse cases.
iii. Confrontation Clause Applied
1. 8.1 admissibility of letter written by wife and left with a neighbor. Wife said her husband was angry
about an affair and she thought he poisoned her and if she died it was requested that the letter be given
to police.
Is her letter testimonial? What is testimonial? Crawford holding: Where testimonial evidence is at
issue, 6A demands what CL required: unavailability & a prior opportunity for cross. Court doesnt
spell out testimonial, whatever else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury or at a former trial and police interrogations.
Various formulations of testimonial exist:
(1) ex parte in court testimony or equivalent (affidavits, custodial examinations, prior testimony
that D was unable to cross-examine, or similar pretrial statements that declarant would reasonably
expect to be used by the prosecution;
(2) extra judicial statements contained in formalized testimonial materials (affidavits, depositions,
prior testimony, or confessions citing White v. Illinois 1992 Thomas, J. Concurring his definition
of testimonial why he doesnt join in FN 6 in Bullcoming);
(3) statements were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.
(4) Bullcoming FN 6 J Ginsburgs opinion defined testimonial broadly, like Davis - to rank as
testimonial, a statement must have a primary purpose of establishing past events particularly
relevant to later prosecution
Wisconsin court applied #3 from Crawford and found the letter to be testimonial because Julie
not only reasonably expected police to see it, but requested that the police see it, which directly implies
her knowledge of a future use in trial.
Because it is testimonial, it implicates 6A right to confrontation, the court went on to apply a
broad version of the forfeiture rule believing that D was involved in wrongdoing and prevented his wife
from testifying in this trial, so since he should not get a windfall from his wrongdoing, the letter was
admitted.
**Note this was before Giles if the Wisconsin court wouldve addressed intent, the result may have
been different since if he killed his wife it was not for the purpose of preventing her from testifying at
trial because there would not have been a trial at the time of the murder. Counter-argument - in
deciding to kill someone, you are aware there is a future trial for such a crime and in deciding to kill her
in completion of your crime you were preventing any witness testimony at your trial. **Appeals court
ruled the letter should have been inadmissible, but it was harmless error due to the weight of the
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2. 8.2 Confession in Blood woman walks in while her house is being robbed & shes strangled and to
death. A man tells his nephew hes involved as an accomplice. Is his statement testimonial? Bullcoming
definition or Crawford three examples. This statement was not made for purposes of future prosecution;
it just ends up getting used that way. What matters is speakers intent at the time of the statement. It was
found to be non-testimonial, thus Ds right to confrontation was not violated.
3. 8.3 a victim made statements to an officer at the station and then he drove her to the hospital; he was
present during the examination, but didnt say or ask anything. It was regular practices for the officer to
be present and quiet. Ohio court applied the third Crawford ex an objective witness would reasonably
believe the statement would be used at a later trial, but because the exam primarily formed a medical
purpose, it was non-testimonial. **Davis: Close question, but this conclusion was likely due to the
nurses procedures and rationale behind questions.
iv. Crawford Recent and Remaining Battles (p. 620-25) covered in supplement. Do children ever make
statements with prosecutorial effects in mind? Do we look at the childs intent or the examiners intent?
Statements of Children: The author only found one case after Bryant & Bullcoming that even mentioned
them & it only did so in passing. The case didnt even really apply Davis.
- Loy, 52 Cal.4th 46, 254 P3d 980 (2011) statements made by 12 year old girl to friend a week before her
murder where she cried softly and told her friend she was afraid of her uncle who made weird looks and
would touch her inappropriately and she told her friend not to tell anyone. D, victims uncle ends up being
tried for her murder. The court held this was not testimonial.
- Cage (2007) Mother cut him in the face with a shard of glass statement being made to a doctor for the
purposes of medical diagnosis or treatment, but it avoids a confrontation clause here, in view of Ca Sp Ct,
because the primary purpose here was not making statements that could be used in a later prosecution, but a
medical disclosure for treatment purposes
- Carlson (8th Circuit) 3 year old boy, court decides, boy had already told his mother what had happened
here had a primary purpose for a criminal prosecution, there was no ongoing emergency
Future of childrens statements court talks about four Bullcoming dissenters Alito, Kennedy, Breyer,
and Roberts (AKBR like Starwars) (p. 616) would not have required the lab tech to have actually performed
the test to appear in trial. Could those maybe pick up one more vote?
v. Dying Declarations classic exception to hearsay rule Michigan v. Bryant 911 call made when man
collapsed after getting out of his car, hes been shot. Police question him about details. Sp Ct majority, over
J. Scalias strong dissent, find statements admissible as a dying declaration that is part of an ongoing
emergency.
Future is unknown: 4 Bullcoming dissenters could be joined by Sotomayor (author of Bryant)
vi. 8.4 Childs Statements White v. Illinois (1992) - 4-year-olds babysitter hears child scream and sees D
leaving childs room, then child tells her that D touched her inappropriately. Child later repeats same story to
mother. Then later tells same story to a police officer and nurse and doctor. Are her statements admissible?
Bullcoming FN 6 testimonial statements have the primary purpose of proving past events particularly
relevant to later prosecution.

Babysitter and mother - caregivers: primary purpose here was concern for her well-being

Nurse and doctor - medical providers: as we saw in supplement cases, there is primarily a medical
purpose here
Police officer maybe child molester on the loose cite Bryant majority for ongoing investigation this
was a close question, but the court admitted it here
B.

BRUTON DOCTRINE Co-D's incriminating confession may not be introduced at joint trial bc it violates Ds
confrontation clause rights.
a. Bruton (1968) - During a joint trial of a D and his accomplice, accomplice makes an out-of-court confession to
postal inspector (gov. official like police). Confession admissible against speaker of confession, but a limiting
instruction was provided to offset admission against Co-D. Both Ds convicted.
- Appeals ct holds Evans confession was inadmissible against him because of due process violations against CoD. If these statements are offered against D, they will fail constitutional clause scrutiny bc a D is entitled not
testify against himself under 5A. The use of Ds accomplices out of court confession presents substantial risk
that the jury, despite instruction, will look to the incriminating statements in determining Ds guilt.
-- Here, the use of the confession deprived Bruton of his right to cross-examination under the confrontation
clause. The confession of a co-D is so lacking in reliability with regard to the non-confessing D that the hearsay

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rule must be strictly applied.
Dissent (White): the practical result of Bruton so severely limits the ability of prosecutors to hold joint trials.
Options for the prosecutor in these cases: severed trials; separate juries; testimony by the confessing
accomplice; redaction; bench trial; admissible of statement against non-maker
- The Bruton problem arises when none of these tactics are possible for the prosecution;
- Brutonized statements = statements that have been redacted
iii. Classic Bruton Case: 3 people charged in drug conspiracy. Prosecution has 1 testify against other 2;
leaving no opportunity for other Ds to cross testifying D (his 5A right not to testify against himself.)
iv. 8.6 witness links attorneys to prison gang testimony in dog-mauling trial. In a letter to an inmate one D
said the other referred to the scheme as the dog o war operation. This letter implicates both Ds knowledge
of the dangerous dogs.
Out-of-court statement offered to prove the truth of the matter asserted Hearsay. Even if it is
admissible under an exception (i.e. statement against interest if D doesnt testify, recorded recollection,
residual exception if demonstrated as trustworthy, reliable, or both), there could still potentially be a
confrontation clause problem, unless (a) declarant appears for cross; (b) declarant is unavailable and D had a
past chance to cross; (C) statement is non-testimonial; (d) forfeiture doctrine applies; (e) dying declaration.
To determine testimonial: (1) Look to Crawford Definition applies at a minimum to prior testimony at
preliminary hearing, grand jury, former trial, or police interrogations letter writer probably had no
thought this would later be used against him; or (2) Bullcoming Definition primary purpose of events
relevant to prosecution Ds letter doesnt fit with this. This letter is likely non-testimonial so subject to
403 it is possibly admissible.
b.

REDACTION PROBLEM:
-- Is there a direct and obvious link to the co-D so the brutonized
statement wont work? Or will it be sufficiently attenuated so that
the
statement is permissible?
iii. Richardson v. Marsh (1987) Marsh and Williams on trial
state redacted the confession of one D, Williams, to omit all
reference to Co-D, Marsh. Confession said they were riding
along in the car devising murder plan. But later in the trial Marsh
admits she was in the back seat when this conversation was
going on, but Williams statement in and of itself doesnt
reference her or even anyone elses existence/presence during the conversation
Court holds that this didnt fall within Bruton Doctrine because the statement was carefully redacted so that
Marsh was not mentioned
iv. Gray v. Maryland (1998) - According to Bruton, certain powerfully incriminating extrajudicial statements of
a codefendant which name the defendant are so prejudicial that limiting instructions are not effective.
- Bell confessed to police to beating Williams to death, implicating himself, Gray, and Jacquin. State tried
Bell and Gray jointly; Trial judge admitted a redacted version of Bells confession into evidence. The
confession was read into evidence w/ the word deleted whenever Grays name appeared.
Problem the confession read into evidence was redacted with deletion or deleted or blank i.e. The
group that beat Stacy me, ____, ____, and a few other guys.
Holding: prejudicial bc it unnecessarily calls the jurys attention to the blanks they look to defense table
& their wheels start turning, thus this runs afoul of Bruton. Jury can react similarly in both an unredacted
confession and one redacted in a way that leaves an obvious blank space or uses the word deleted. Court
cites Richardson v. Marsh: Marshs name was properly redacted. Later, Marsh testified he was in the back
of the car essentially implicating himself in the confession.
Dissent (J. Scalia): agreed with trial courts redaction - the majority erroneously concluded that deleted
amounts to a description which clearly identifies the D. Uses a POWERFUL standard.
v. 8.7 Edwards, 159 F.3d 1117 (8th Cir. 1998) - a 1988 fire killed six firefighters. In 95 people were
charged. In a tape-recorded statement Edwards told investigators about taking 2 of them to get gas. Her
statement was redacted to replace references to Co-Ds with neutral pronouns
- Statement was to police under formal circumstances; the primary purpose was looking toward to a future
criminal trial, which is what happened (like Crawford)
Admissible? No reference to any involvement, the use of pronouns doesnt directly say two missing names
with blanks, but arguably the jury could still infer. 8th circuit affirms convictions honing in on language in

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Gray why couldnt witness have said blanks statement with pronouns
**Take home point when you use blanks the jury is likely to hone in on it, but when you use pronouns or
generalities that doesnt, to the same degree at least, attract their attention as much.
C.

COMPULSORY PROCESS 6A: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . & be informed of the nature & cause of accusation . . . to be confronted with witnesses against him &
to have compulsory process for obtaining witnesses in his favor . . . . This gives a crim D the right to subpoena
defense witnesses; it has been more broadly interpreted to entitle a D to obtain & present all evidence helpful to his
defense.
iii. Chambers v. Miss. (1973) D has a right to present a defense. Chambers convicted of murdering a cop, but
another man (McDonald) admitted to it. D argued: (1) it wasnt him & (2) it was McDonald. State rules
prohibited D from impeaching McDonald when he testified that he had not confessed and also prevented D from
introducing testimony from other witnesses about the confession. These rules deprived D of a trial in accord w
traditional & fundamental standards of due process. Where constitutional rights directly affecting the
ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically so to defeat the ends of
justice.
-- Mississippi Law (the voucher rule) did not allow Chambers (D) to cross-examine McDonald. This law
violates compulsory process bc the declaration of interest must also be against penal interest, not just pecuniary
(financial) interest most states have this rule though.
Note: this case wasnt decided under 6A compulsory clause, it was decided under 14A due process clause it
embraced rights to confront and cross witnesses and call witnesses in ones own behalf - maybe it was done this
way to be kept low key to help get a decision. **Timmy Hancock argued this case for the state to the Sp Ct Ole
Miss classmate of Davis

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------------------------------------------------------------UNIT 2: RELIABILITY CHAPTER 9 LAY OPINIONS AND EXPERT TESTIMONY
I.

LAY OPINIONS: 701

IF WITNESS IS NOT TESTIFYING AS AN EXPERT, TESTIMONY AS OPINION/INFERENCE IS LIMITED TO THOSE THAT ARE:
(A) RATIONALLY BASED ON WITNESS PERCEPTION, AND (B) HELPFUL TO A CLEAR UNDERSTANDING OF WITNESS' TESTIMONY
OR DETERMINATION OF A FACT IN ISSUE, AND (C) NOT BASED ON SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED
KNOWLEDGE WITHIN THE SCOPE OF RULE 702 (ADDED IN 2000 AMENDMENT TO AVOID EXPERT TESTIMONY UNDER GUISE OF
LAY TESTIMONY)

Advisory Co notes amendment is not intended to prohibit the prototypical examples relating to the appearance of
persons or things, identity, manner of conduct, degrees of light or darkness, sound, size weigh, distance, and an endless
number of items that cannot be described factually in words apart from inferences.
-- If the witness says someone was furious theres an objection (thats a conclusion/opinion) judge says thats one of
those things thats hard to describe, we just know it when we see it fury looks like well fury.
i. Clip (repeat) insurance fraud case about a burned up truck. Witness: He said, Im just a poor man. Lawyer: what
tone of voice did he say that in? Witness: a depressed voice
(1) This was his perception his view, jury didnt see it
(2) Helpful for the jury to know what his demeanor was when he made the statement
(3) Cannot be expert testimony disguised as a lay witness matters of perception such as appearances are noted
by the advisory committee not to be excluded (objection to not laying a foundation would lead the lawyer to dig
further what was his voice like when he said, what made you come to that conclusion - - this might just draw more
attention to it and be worse than if the objection would not have been made
What if the witness said, He sounded guilty
This probably crosses the line because thats really the ultimate question to be decided by the jury
ii. Brothers Keeper Clip (repeat) - Disagreement about time of death; witness said he came by in the morning and
he hadnt been dead for long. He was dead. I could tell he was dead. So could you. His arm was floopsy. Hes
cool, not cold so I dont think hed been dead too long.
Prof Davis: I doubt thered even be an objection, he was dead and his arm was floopsy - things ordinary people
know and can observe. He had not been dead long this is a tougher one. Maybe one could argue that as a farmer,
seeing dead animals he knows about death because of the business hes in.
iii. 9.2 D charged with selling cigarettes to a minor D seeks to offer testimony of witnesses who were familiar
with the buyer and would testify that she appeared to be 20-21 years old.
Prof Davis this probably fits under that language of the advisory committee note prototypical examples of
appearances.
9th Circuit Court disagreed with trial courts exclusion of these witnesses because giving a determination of
someones age is something that lay people can normally express
iv. 9.3 witness is going to give opinion as to discovering cocaine in Ds shoes
such testimony is not based on specialized knowledge within the scope of 702 but rather is based in the lay
persons personal knowledge. Court said she could give this testimony because she knew what cocaine looked,
smell, and tasted like
v. United States v. Ganier (2006) Forensic test results run on computers & related testimony constitutes
scientific, technical, or other specialized knowledge within the scope of 702 since it requires interpretation by a
forensic computer specialist. D indicated some files were transferred to recycle bin rather than deleted. Gov.
computer specialist used forensic software to search comp and found evidence that D to avoid conviction possibly
deleted some docs. Gov did not supply summary to the other side, which criminal procedure rules require for
expert testimony. Prosecution argued the specialist was offering lay testimony bc anyone could figure out with
over the counter, commonly available software. Court says this is an area of expertise - people can use
thermometers at home and use those things accurately, but other kinds of specialized tests get into an area of
expertise and it finds this case to be more like the latter that required specialized knowledge. Since its expert
testimony, the trial court excluded it, but appeals court said that was too severe since there was no bad faith & no
serious prejudice bc D already had his own expert witness lined up to testify. Plus, there were other options the
trial judge could have utilized: continuance, enter any other order under the circumstances, order discovery.
**Note: advisory committees note to 2000 amendment to 701 implies that while a lay witness may not offer
opinion testimony based on specialized knowledge, the witness may do so based on his or her a particularized
knowledge gained by his or her position in a business. arguably, the particularized knowledge on which lay
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vi. 9.4 government wished to present a witnesss testimony about how he deciphered the hieroglyphic code and
determined the phone numbers of persons listed in the book. Judge concluded he could testify and explain how he
deciphered the hieroglyphics.
Should the trial court have permitted this testimony as a lay witness?
Davis: deciphers cryto-quotes his personal knowledge and he has a knack for it
GRNG = THAT about 95% of the time, requires an eye for linguistic pattern s
vii. 2 Key Differences bw Lay & Expert Opinions: (1) Only expert opinions may draw upon the witnesss
scientific, technical, or other specialized knowledge (701(a)). (2) Lay witnesses cannot rely on hearsay, but
experts may in certain cases (Melton, 703)
II.

EXPERT TESTIMONY: 702

IF SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE WILL ASSIST THE TRIER OF FACT TO UNDERSTAND THE
EVIDENCE OR TO DETERMINE A FACT IN ISSUE, A WITNESS QUALIFIED AS AN EXPERT (#1 PROPER QUALIFICATIONS) BY
KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR EDUCATION, MAY TESTIFY THERETO IN THE FORM OF AN OPINION OR
OTHERWISE, IF
(1) TESTIMONY IS BASED UPON SUFFICIENT FACTS OR DATA (#2 PROPER TOPIC)
(2) TESTIMONY IS PRODUCT OF RELIABLE PRINCIPLES AND METHODS (#3 SUFFICIENT BASIS), AND
(3) WITNESS HAS APPLIED PRINCIPLES AND METHODS RELIABLY TO CASE FACTS (#4 RELEVANT AND RELIABLE METHODS)
AND MUST MEET #5 RULE 403 WEIGHING TEST

Courts often favor expert testimony admissibility bc opponent is free to counter it w/ opinions from rival experts
Decisions of expert testimony admissibility are reviewed under the abuse of discretion standard

1.

PROPER QUALIFICATIONS FOR EXPERTS:

9.5 Man says he helped bring drugs to state (1977) - He can id marijuana due to
his experience for many years and his use of the drug more than 1000 times and
identifying it over a hundred times, based on plants appearance. His testimony is in
direct conflict w the other sides witness who claimed there was no test to
differentiate bw marijuana types.
Note, Johnson - p. 695 introduction of expert testimony does not foreclose the
issue from consideration by the jury, which need not accept the experts testimony.
D is free ot introduce his own expert to challenge the prosecutions witness.
Especially if the court instructs the jury they can consider expert testimony and give it the weight it thinks it
deserves
Note, you can have lay testimony counter expert testimony
ii. United States v. Johnson (1979) - Rule 702 allows for expert testimony derived from experience as well as
formal training or education. The government needed to prove that the pot came from outside the US. D argued
that the origin of the pot was impossible to prove without objective indicia. A witness for the govt testified as an
expert that the pot came from Colombia. His expertise came from admitted significant use of pot/experience
identifying pot through physical appearance of the plant. Here, the judge held his experience smoking pot
qualified him as an expert
iii. Jinro America v. Secure Investments (2001) Substantial, practical expertise, formal training, or education
in the particular relevant field is necessary to qualify a witness as an expert under rule 702. Its not enough
to have an expert qualified in a particular area, hes testimony must be solely based in that area. No question of
him being in expert qualified in Korean companies, but he was testifying outside of his area of expertise.
iv. 9.6 - witness was an instructor for FBI and DEA and had listened to more than 350 wiretaps, thus the court
found that his interception and translation of certain phrases were admissible as expert testimony
Note distinguishing problems - if witness were described how it was manufactured or made then the witness
would have to be qualified as an expert or describing the country of origin i.

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2.

Proper Topics
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OPINION ON ULTIMATE ISSUE

(A) EXCEPT AS PROVIDED IN SUBDIVISION (B), TESTIMONY IN THE FORM OF AN OPINION OR INFERENCE OTHERWISE
ADMISSIBLE IS NOT OBJECTIONABLE BECAUSE IT EMBRACES AN ULTIMATE ISSUE TO BE DECIDED BY THE TRIER OF
FACT.
(B) NO EXPERT WITNESS TESTIFYING WITH RESPECT TO THE MENTAL STATE OR CONDITION OF A DEFENDANT IN A
CRIMINAL CASE MAY STATE AN OPINION OR INFERENCE AS TO WHETHER THE DEFENDANT DID OR DID NOT HAVE THE
MENTAL STATE OR CONDITION CONSTITUTING AN ELEMENT OF THE CRIME CHARGED OR OF A DEFENSE THERETO.
SUCH ULTIMATE ISSUES ARE MATTERS FOR THE TRIER OF FACT ALONE
--ORIGINIAL RULE USED TO BE JUST SUB-SECTION A; SUB-SECTION B WAS ADDED AS AN AMENDMENT AND IT IS
KNOWN AS THE HINCKLEY AMENDMENT HINCKLEY TRIED TO ASSASSINATE THE PRESIDENT AND WAS ACQUITTED
ON THE GROUNDS OF INSANITY (ALSO LED TO GUILTY BUT MENTALLY ILL)

A.

MATTERS OF COMMON KNOWLEDGE

- Sometimes, reasonable assumptions about jurors common knowledge avoid need for expert clarification
- TM dispute Ex: Match vs. Macho for mens toiletries. One company wanted to offer the testimony of a
Professor of English to say that the sounds and spellings are confusingly similar.
702 analysis (1) He has specialized knowledge -but, its probably not needed here. (2) He is testifying to
sound and spellings so it is not helpful to the jury to understand this. They understand how words sound and are
spelled and would not be confused.
i. Clip expert witness discussing cause of death vs. manner of death; fine as background information
ii. 9.7 Defense: If D made any mistakes it was because he was confused, no intent to deceive. D wanted to
offer expert witness to testify about memory and human ability to confuse things. 702: Do ordinary people
(jurors) need to have problems of memory explained to them? No, theyd likely understand
forgetting/mixing up things. This isnt something that would help the jury
iii. 9.8 mens toiletries called match v. a line called macho one company objects in proceeding and
wants to offer English professors expert testimony that the sounds and spellings of match and macho
rendered the two words confusingly similar. Trial court admitted testimony and appeals court upheld
summary judgment. The appeals court said it was okay but he also would have been warranted in excluding
the testimony
B.
OPINIONS ON LAW AND OPINIONS ON ULTIMATE ISSUES
- Expert may state opinion on ultimate case issue (modern), but may not insert D into that opinion.
i. 9.10 two women go out of town to all these separate stores buying products possible of making meth;
charged with intent to manufacture meth; expert testifies that these purchases show intent to manufacture
meth. He essentially testifies to the ultimate issue, but this is the question to be answered by the jury.
court actually quoted advisory committee notes (p. 196 of supplement) abolition of the ultimate issue rule
does not lower the bar so as to admit all opinions under 701 and 702 opinions must be helpful to trier of
fact, and 703 excludes time wasting evidence, these provisions afford ample assurances against admission of
opinions which would merely tell the jury what result to reach.
This is what the court concluded in this case, the expert here attempts to do the jurys job for them
ii. Hygh v. Jacobs (1992) - Hyghs cheekbone was fractured after fight w officer. Hyghs surgeon said it would
have been caused by a blunt instrument. Officer admitted to having flashlight during the fight, but said he
didnt use it. Ds law enforcement expert testified that the cops conduct constituted deadly physical force.
The experts testimony gave conclusions with crossed the line of 704, and invaded the providence of the
jury. It should have been excluded. Further, it is not his role to define deadly force; it is the role of the court,
but the error was found harmless.
Note: Its important whether police testimony is offered as expert or lay, b/c the jury might consider
evidence more heavily if it comes from an expert
C. OPINIONS ON CREDIBILITY - Expert testimony is inadmissible on the issue of whether a witness in a case has
testified truthfully. Deciding the credibility of a witness is the province of the jury.
i. 9.11 - expert witness got into an area thats an unacceptable expert witness area credibility of other
witnesses- again thats an exclusive function of determining of fact either the jury or, in a bench trial, the
judge.
ii. Batangan - expert witness may NOT render legal conclusions or conclusory opinions that invade the jurys
province. D indicted for rape and sexual abuse when his minor daughter accused him. She later recanted, but
testified to the abuse at trial. D was acquitted of rape, but the judge declared a mistrial on the sexual abuse
charge bc of a hung jury. At retrial of the sex abuse charge, the govt offered expert testimony from a clinical

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psych with a specialty in sexually abused kids. Bond testified to his examination of the daughter, his
experience with the behavior of sexually abused kids in general, and then implied that the daughters
testimony was credible and should be believed.
- It was reversible error to admit the experts testimony bc it invaded the province of the jury to determine
the credibility of the witness. The expert did not explicitly state that the daughter was telling the truth, but
his implications were enough that the jury did not have to make a connection
- Rule 704 permits opinion testimony regarding the ultimate issue, but not for the expert to inform the jury
of the correct conclusion. The common experience of a jury in most caess provides a sufficient basis for
assessment of a witness credibility. Thus, expert testimony on a witness credibility is inappropriate.
D. OPINIONS ON EYEWITNESS IDENTIFICATION
i. Hines (1999) - Expert testimony may be appropriate even in areas within the understanding of the average
juror, where the juror may make inappropriate inferences based on common knowledge. Right after the
robbery, bank teller gave robbers description and it was as close to a generic id of a black man as it could
be. After being shown photos twice, she picked D out of a selection of 8 photos and months later selected
him from a lineup.
At Ds trial, he sought to introduce the expert testimony of, a clinical psych specializing in eyewitness ID,
specifically the trouble with cross-racial ID, the differences in pics of groups, and common psych mistakes
in choosing a suspect from a lineup. Hines was black and Dunne was white. His pic was significantly darker
than the 7 others shown, and was numbered differently. He was also the darkest man in the lineup. Govt
argued this testimony was unnecessary b.c the jury could determine the credibility of Dunnes ID on its own.
- The expert testimony could aid the jury in finding the truth b.c they would now have a better understanding
of the science of eyewitness ID this is like providing an expert when the issue is battered women
syndrome. The expert provides info that may correct erroneous assumptions that the battered woman would
have behaved like the average juror
Note: Its a difficult line to draw, at what point does the expert testify to things jury already knows
3.

PROPER BASES OF OPINION TESTIMONY

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DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION. THE EXPERT MAY TESTIFY IN TERMS OF OPINION
OR INFERENCE AND GIVE REASONS THEREFORE WITHOUT FIRST TESTIFYING TO THE UNDERLYING FACTS OR DATA,
UNLESS THE COURT REQUIRES OTHERWISE. THE EXPERT MAY IN ANY EVENT BE REQUIRED TO DISCLOSE THE
UNDERLYING FACTS OR DATA ON CROSS-EXAMINATION.
-- ALLOWS THE COURT TO REQUIRE DISCLOSURE OF THE DATA RELIED ON BY THE EXPERT

EXPERT BASES AN OPINION OR INFERENCE MAY BE THOSE PERCEIVED BY OR MADE KNOWN TO THE EXPERT AT OR
BEFORE THE HEARING. IF OF A TYPE REASONABLY RELIED UPON BY EXPERTS IN THE PARTICULAR FIELD IN FORMING
OPINIONS OR INFERENCES UPON THE SUBJECT, THE FACTS OR DATA NEED NOT BE ADMISSIBLE IN EVIDENCE IN ORDER
FOR THE OPINION OR INFERENCE TO BE ADMITTED. FACTS OR DATA THAT ARE OTHERWISE INADMISSIBLE SHALL NOT
BE DISCLOSED TO THE JURY BY THE PROPONENT OF THE OPINION OR INFERENCE UNLESS THE COURT DETERMINES
THAT THEIR PROBATIVE VALUE IN ASSISTING THE JURY TO EVALUATE THE EXPERT'S OPINION SUBSTANTIALLY
OUTWEIGHS THEIR PREJUDICIAL EFFECT. (BUILT IN WEIGHING-TEST)

Expert may state an opinion based on facts that are (1) perceived by or made known to the expert at the trial (705);
(2) perceived by the expert before the trial / personal observation (703); (3) made known to the expert before the trial.
(this enters the realm of hearsay/out of ct.) (703)
There is no requirement that this info be admissible in evidence so long as it is the type of data that experts in the field
reasonably rely on in forming opinions.
-- Purpose: avoid litigants seeking to have an expert rely on inadmissible fats or data mainly for the purpose of bringing
that otherwise inadmissible evidence to the attention of the jury
i. In Re Melton - Experts dont need first-hand knowledge; Psychiatrists may reasonably rely on the reports of
fam members. Jurys decision to commit Melton was based on the testimony of 2 psychiatric experts, who
testified he was schizo and a danger to himself and others. Their opinion rested entirely on hearsay - a report
from his mom that he struck her before. Judge allowed report with a limiting instruction. Held: 703 weighing
test: the govt may not disclose the mothers hearsay accusation to the jury unless the court determines that its
probative value in assisting the jury substantially outweighs the prejudicial effect. The info about the family may
not come in as substantive evidence; it may only be offered for the experts opinion

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o Advisory note this is the kind of thing that physicians or medical experts would rely on and base their
opinions on, but these experts went further than that and testified as to what the family member comments
were
o This case was before 2000 amendment to 703 the last sentence facts or data that are otherwise
inadmissible must not be disclosed court didnt have benefit of this sentence but the court scrupulously
followed this sentence regardless and gave a limiting instruction to not consider the mothers comment
outside of the bases for his report.
Davis: jurors cant do this you can hammer the nail into the wall and pull that nail out but the hole still
remains jurors cannot unheard the comment and cannot really block it out of their decision-making
process
o They express misgivings but ultimately uphold the trial courts decision no abuse of discretion even
though they might would have done things differently
ASSESSING THE RELIABILITY OF EXPERT SCIENTIFIC TESTIMONY
i. Frye (1923) expert opinion based on a scientific technique is inadmissible unless the technique is generally
accepted as reliable in the relevant scientific community. Ascertaining the difficult-to-determine point that a
scientific principle or discovery crosses the line between the experimental and demonstrable stages, but here the
court ruled that a systolic blood pressure deception test (precursor to polygraph) had not yet gained such standing
and scientific recognition to justify the courts admission of expert testimony
deduced from its use.
ii. Daubert (1993) To be admissible in federal trial, an expert opinion must be
based on sound principles and valid deductions/ must be relevant (must be
helpful and pertinent to issue at hand) & reliable (must establish testimony
grows out of pre-litgiation research/research subject to peer review).
(overruled Frye Rule 702 is broader than Frye).
- Mother used bendictin when she was pregnant. Child has birth defects; tried
to get in evidence of defects. General acceptance is not a necessary
precondition to admit scientific evidence; FREs assign trial judge the task of ensuring expert testimony is reliable
and relevant to the case. Pertinent evidence based on scientifically valid principles will satisfy those demands.
Not required that scientific testimony must be known to a certainty because arguably there are no certainties in
science.
Part II B FREs do not supplant any limitations on admissibility of purportedly scientific evidence - Court
explains that reliability and relevance are two key points
Part II C outlines some factors for the trial judge to consider in determining whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue
Factors to determine whether expert testimony should or should not come in *list is not exclusive, only
illustrative and no one issue is determinative.
1. Can the theory be tested, and if it can, has that testing taken place?
2. What are its known or potential error rates?
3. Has it been described in scientific publications subject to peer review?
4. Is there an existence and maintenance of standards controlling the techniques operation; and
5. Has it achieve some degree of general acceptance in the relevant scientific community? (**this factor
carries a lot of weight)
Chief Justice Rehnquist Dissent agrees that the Frye rule did not survive FREs, but disagrees with the Courts
interpretation of 702 and 703 (Part II B) I do not doubt that 702 confieds to the judge some gatekeeping
responsibility, but I do not think it imposes them to become amateur scientists to perform that rule. Court should
have answered the questions presented and leave the further development of this important area to future cases.
iii. Afterthoughts

Note: Daubert was before 702 amendment, which was added specifically in response to Daubert.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case.

Court notes that FREs intend to relax evidence rules and note that Frye represented a pretty high bar,
so consistent with the overall approach of FREs, we think the bar needs to be lowered. But even though

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Daubert purports to be a liberal interpretation and the advisory committee comments that Daubert shows
that the rejection of expert testimony is the exception rather than the rule, some commentary conjectures that
Daubert actually raised the bar

Advisory committee notes 185 in supplement paragraph at the bottom when a trial court
applying this amendment rules that an experts testimony is reliable, this doesnt mean that contradictory
expert testimony is unreliable. . . . Proponents do not have to demonstrate to a judge by a preponderance of
the evidence that their opinions are correct, only that they are reliable.

Kumho Tire Company v. Carmichael answered Rehnquist dissent Q: everything the court said
about scientific knowledge testimony applies equally to technical or specialized aspects of expert testimony

General Electric Company v. Joiner appellate courts reviewing admissibility decisions of Daubert
expert testimony under abuse of discretion standard. Thus these rulings will rarely be reversed
United States v. Llera Plaza (2002) Daubert Hearing Example: Judge Pollak thought finger print identification
had been insufficiently tested and peer-reviewed and thus failed to operate under uniformly accepted scientific
standards. He didnt think experts should be able to opine that Ds fingerprints matched the scene. He held a
Daubert hearing, but then ultimately concluded that it was admissible
My Brothers Keeper Clip: Med Expert concludes that Delberts brother died from asphyxiation; on cross
he is asked about the degree of certainty I cannot rule out homicide. 2 prominent experts testify to opposite
conclusions. Cause of death in this case is a big issue, but not the ultimate issue the jury has to decide,
regardless of how he died, was the manner of death homicide
Daubert (9th circuit 1995); cert denied
- the first prong of Daubert puts federal judges in an uncomfortable position we are largely untrained in
science, yet its our responsibility to determine whether experts proposed testimony amounts to scientific
knowledge that constitutes good science and was derived from the scientific method. The task is more
daunting when the dispute is an issue at the cutting edge of scientific research, where facts meet theory and
certainty dissolves into probability. Our responsibility then is to resolve disputes among respected, wellcredentialed scienties about matters squarely within their expertise
**He basically poo-poos the 5 Factors
- Testimony proffered by expert is based directly on legitimate, preexisting research unrelated to the litigation
provides the most persuasive basis for concluding that the opinions he expresses were derived by the scientific
method. While Ps are experts in their respective fields, none of them studied this area before being hired to
testify to this and related cases
N.Y. Times excerpts Judge Rules Breast Implant Evidence Invalid- Implications of Daubert in these masstort cases Judge Jones faced with 70 breast implant cases asks panel of disinterested scientists to advice him
on Ps evidence. Judge dismisses 70 cases that dont rise to meet the Daubert expert opinion requirements.
**Davis this really clears his docket; due to standard of review he likely wont be overruled HAS DAUBERT
REALLY RAISED THE BAR!!??
Daubert Hearing: occurs pre-trial, not in front of the jury - the party seeking to introduce the expert witness will
bring in evidence of supporting the 4 factor to prove the content of the experts testimony is reliable Supposed
to allow for more liberal admittance
Criticism of Daubert Hearings: Daubert does not allow for liberal admittance, but rather, makes courts screen
out what they believe is speculative science; bar is being put up too high on admission on reliable scientific
evidence. Some are skeptical about judges being able to perform a scientific inquiry
Polygraph Evidence - Susan Haack judges are not qualified to make this assessment; the idea that sending
judges to a science seminar to be qualified to make these determinations is overly optimistic. Although she is
sure that will do some good, a few hours in a science seminar will no more transform judges into scientists
competent to make subtle and sophisticated scientific determinations than a few hours in a legal seminar would
transform scientists into judges competent to make subtle and sophisticated legal determinations
Note - Daubert II Judge Kozinski noted that judges are largely untrained in science and unmatched to
determine experts proposed testimony, it is our daunting task to evaluate, but he does proceed to evaluate
Polygraph evidence under Dauberts relevance-and-reliability analysis?
United States v. Crumby (1995) One approach, but not the most common position; this court is open to
admitting polygraph evidence and find it admissible, but under limited circumstances: when (1) D
provides sufficient notice to government; (2) opposing party has a reasonable opportunity to have its own
polygraph administered; (3) it will be allowed to impeach or corroborate testimony of D if D testifies and
governent impeaches his credibility
Notes Four Main concerns with polygraphs: (1) aura of infallibility; (2) opinion regarding ultimate

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issue; (3) polygraphs infringe on jurys role to determine credibility; (4) judicial resources will be unduly
consumed
Court looks to Daubert factors: testability (could be a problem with the control questions; *DAVIS and
note that all the court discusses is the actual test procedure, not tests of the test); peer reviewed; error
rates (the error is more likely to find an innocent person guilty so if it concludes innocence the error
margin is very low; acceptance in scientific communities (the community the court looks to his
polygraph examiners- BUT we would hardly expect them to be objective/critical observers)
9.14 U.S. v. Canter (SDNY 2004) court denied polygraph evidence -similar to the prevalent court position. But
then D wants to show his consciousness of innocence & have the examiner testify to the fact that he consented to
take the test afer the examiner had told him about her high level of success. Concern: if everyone knows that
polygraph evidence is inadmissible then go ahead and take it and then admit the fact that you consented. Court
rejected evidence and said this whole thing has a bad odor to it. D could take the test in private & then if it shows
hes lying, no one knows about it, but if it shows he is telling the truth then they try to get it admitted. OR worse
D knows the results are inadmissible so we take the test to show consent/consciousness of innocence
Navigating Expert Reliability article lays out problems associated with unstipulated polygraph evidence;
some difficulties could be overcome with legislation/evidence rules to deal with some issues, BUT Davis says
there does not seem to be any desire to do this
U.S. v. Scheffer (1998) D wants to offer evidence that he passed a lie detector test to show he didnt use drugs.
Military rules of evidence have a blanket ban on polygraph evidence looking back to Chambers (6th amendment
compulsory process clause); Can denial of polygraph evidence violate the compulsory process? The Court
holds (8-1) no right to compulsory process here; Chambers required the evidence to be crucial to the defense
and reliable & polygraphs are not completely reliable. J. Thomas (majority) wrote that the jury is the lie
detector and polygraph evidence will diminish the jurys role in making credibility determinations (only 4
justices joined in this part and 4 other justices not concerns of reliability, but made it clear it is not
jurisdictionally required to ban polygraph evidence outright).
J. Stevens dissenting: (1) Jurors dont blindly follow polygraph evidence and (2) Shows empirical studies
suggesting 85-90% accuracy, even critical studies conclude that accuracy is 70%, we routinely admit far less
reliable evidence;
**Davis notes that polygraph evidence really goes to truthfulness and perhaps the courts greatest concern is
with this aspect more so than reliability
Neuroscience-Based Lie Detection - New Mexico Supreme Court allows it under some conditions, but generally
this evidence is not allowed; theres not much in the basis of these studies indicating that this method, anymore
than the polygraph method, is an accurate means of determining truthfulness
A Hogwartz sorting hat would throw all of this up in the air - : )
Assessing the Reliability of Non-Scientific Expertise
Kumho Tire Co (1999) court basically says that everything from Dauberts conclusion on scientific knowledge
applies with equal force to expert testimony based on technical/specialized knowledge - rear tire blows out on
minivan causing an accident and death/injuries; Q at trial was whether the tire was defective. Trial court excluded
experts testimony bc it failed 702s reliability requirement. Supreme Court affirmed - A trial court must examine
the reliability & relevance of expert testimony for not only scientific knowledge but technical or other
specialized knowledge as well, and may flexibly apply one or more of Dauberts specific factors to determine the
admissibility of a technical experts testimony based on its relevancy and reliability. *The standard doesnt
require the expert be correct, just reliable. If the judge determines it is, it may come before the jury. Rationale:
(1) The rule on its face makes no distinction bw scientific knowledge & technical/specialized knowledge; (2)
Experts can formulate opinions based on hearsay and not firsthand knowledge; and (3) It would be difficult, if
not impossible for a trial judge to distinguish between these different kinds of knowledge
Dissent: question of the exclusion of expert testimony should be decided by the court of appeals since it involved
the study of the record. Daubert factors are meant to be helpful, but not determinative. *note: Daubert doesnt
quite apply when dealing with technical terms- not the same as a scientific theory
In 2000 Congress amended FRE 702: If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness qualifies as an expert by
knowledge, skill experience, training, or education, may testify thereto in the form of an opinion, or otherwise if
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applies the principles and methods reliably to the facts of the case.
--Supported by defense attorneys because it keeps the bar for expert testimony high

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9.15 Hedonic value of life value of pleasure, satisfaction, utility of life, separate from labor or earnings. Under
Daubert, difficult to test, only subject to limited peer review, not a determinability method of the error rate,
general acceptance is likely low since its new. Under Daubert factors, at least two factors testing and rate of
error are totally lacking, but do note the factors are not exclusive. The court added some other factors to the
analysis, but ultimately excluded it.
Saks, Aftermath of Daubert, but before Kumho forensic handwriting flunks Daubert, thus it is not science,
then because its not science it need not pass the Daubert test and a looser test applies under which it is
admissible. Leads to people offering experts saying this really isnt an area of scientific expertise to evade
Daubert test. But then Kumho levels the playing field.
Clip sexual harassment lawsuit; expert testifying for P about Rape Trauma Syndrome. In clip, defense attorney
is cross-examining expert. Its not inconsistent with the syndrome to act normally and it would be consistent for
them to act upset. Defense counsel is trying to demonstrate that this will not be helpful to the jury because
basically every behavior fits under her theory. The prosecutor could argue that it is an area of expertise, the
methodology is sound, and there is sufficient data. Further, this is not an offensive type of testimony, shes not
going so far as to say that she is a victim of rape, its more defensive, by just offering the factual basis. This
testimony goes to help the jury recognize that some people may not act immediately and in the time in between
may act normally.
**Davis compares this to child abuse cases experts not proffering testimony that D abused child, but rather that
it is possible that some parents do abuse their child help understand battered child syndrome to explain that
such a thing can happen, does happen, and why sometimes children reactions are the way that they are and those
reactions might be unexpected or unpredictable.
State v. Kinney (SC of VT, 2000) - rape trauma syndrome - At trial for kidnapping/aggravated sexual assault,
the state called an expert on rape trauma victims. He defined rape trauma syndrome, explained the responses of
rape victims to their attacker, the typical patterns of reporting rapes, and that the rate of false reporting is very
low. D wanted this excluded
Holding 1: Expert evidence of rape trauma syndrome and the associated typical behavior adult rape
victims is admissible. It meets Daubert. It will assist the jury to evaluate the evidence, and to respond to defense
claims that the victims behavior after the alleged rape is inconsistent with her claim of rape. Also, the evidence
used her is professionally recognized and sufficiently reliable to be admitted, and is the type that minimizes the
risk of improper usage or excessive prejudice.
Holding 2: Expert evidence of the rate of false reporting accusations is inadmissible but D did not make an
y specific objection to that testimony and trial court did not commit plain error the conviction is affirmed
--- but the opinion looks like he did object (davis says this is strange maybe no specific objection means he
waited too late)
p. 792 consider that question has having been settled if it is expert testimony of a same type that has already
been approved
p. 793 if its novel to us, but some other kind of expertise is frequently not novel to other courts and to the extent
that their analysis is thorough than we can use that in our own decision
Two psychologists conclude that PTSD (post-traumatic stress disorder) and MPD (multiple personality disorder)
are just theories that are not generally accepted. In their view, experts have an affirmative ethical duty to refuse to
give testimony that would not reasonably be expected to pass Daubert/Kumho scrutiny, even if opposing counsel
doesnt challenge its admissibility
Illustrative Cases:
Alberico (1993) finds a general acceptance in psychology of PTSD and found it admissible, but Rape Trauma
Syndrome testimony is inadmissible because it is not part of the specialized manuel DSM III-R (specialized
literature that specifically catalogues symptoms of mental disorders) as PTSD is
Chauvin (2003) finds PTSD although widely accepted is not a reliable indicator thus expert testimony of
PTSD is inadmissible
9.16 separation violence expert testifies that batterers tend to call and isolate their victims; recounting the
basic facts of the case at hand. Court said it was really character evidence and it was improperly admitted. But
remember under 404(B) character evidence can be admissible to show certain things, i.e. motive, overall plan or
scheme and it might have fallen under that.
Davis: you can have expert testimony on battered child syndrome, which was a phrase that medical doctors
coined and experts testify that it does happen and when it does this is what you typically see, BUT when experts
testify and define their characteristics specifically to D courts say that goes too far

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------------------------------------------------------------UNIT 2: RELIABILITY CHAPTER 10 AUTHENTICATION, IDENTIFICATION, AND THE BEST EVIDENCE RULE
I.

AUTHENTICATION & IDENTIFICATION: 901 - authentication analysis when documents, records, or other
physical things are described in testimony/offered into evidence; analysis determines relevance; jury decides authenticity.
(A) THE REQUIREMENT OF AUTHENTICATION/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.
(B) ILLUSTRATIONS (not exhaustive) - EXAMPLES OF AUTHENTICATION/IDENTIFICATION CONFORMING W RULE REQUIREMENTS:
(1) TESTIMONY OF WITNESS WITH KNOWLEDGE THAT A MATTER IS WHAT IT IS CLAIMED TO BE.
(2) NONEXPERT OPINION ON HANDWRITING BASED UPON FAMILIARITY NOT ACQUIRED FOR PURPOSES OF THE LITIGATION.
(3) COMPARISON BY TRIER OR EXPERT WITNESS WITH SPECIMENS, WHICH HAVE BEEN AUTHENTICATED.
(4) DISTINCTIVE CHARACTERISTICS AND THE LIKE. APPEARANCE, CONTENTS, SUBSTANCE, INTERNAL PATTERNS, OR OTHER
DISTINCTIVE CHARACTERISTICS, TAKEN IN CONJUNCTION WITH CIRCUMSTANCES.
(5) VOICE IDENTIFICATION WHETHER HEARD FIRSTHAND OR THROUGH MECHANICAL/ELECTRONIC TRANSMISSION/RECORDING, BY
OPINION BASED UPON HEARING VOICE AT ANY TIME UNDER CIRCUMSTANCES CONNECTING IT W ALLEGED SPEAKER.
(6) TELEPHONE CONVERSATIONS BY EVIDENCE THAT A CALL WAS MADE TO THE NUMBER ASSIGNED AT THE TIME BY THE PHONE
CO TO A PARTICULAR PERSON OR BUSINESS, IF (A) IN THE CASE OF A PERSON, CIRCUMSTANCES, INCLUDING SELFIDENTIFICATION, SHOW PERSON ANSWERING TO BE THE ONE CALLED, OR (B) IN THE CASE OF A BUSINESS, CALL WAS MADE
TO A BUSINESS & THE CONVERSATION RELATED TO BUSINESS REASONABLY TRANSACTED OVER THE PHONE.
(7) PUBLIC RECORDS OR REPORTS. EVIDENCE THAT A WRITING AUTHORIZED BY LAW TO BE RECORDED OR FILED AND IN FACT
RECORDED OR FILED IN A PUBLIC OFFICE IS FROM THE PUBLIC OFFICE WHERE ITEMS OF THIS NATURE ARE KEPT.
(8) ANCIENT DOCUMENTS OR DATA COMPILATION. EVIDENCE THAT A DOCUMENT OR DATA COMPILATION, IN ANY FORM, (A) IS IN
SUCH CONDITION AS TO CREATE NO SUSPICION CONCERNING ITS AUTHENTICITY, (B) WAS IN A PLACE WHERE IT, IF
AUTHENTIC, WOULD LIKELY BE, AND (C) HAS BEEN IN EXISTENCE 20 YEARS OR MORE AT THE TIME IT IS OFFERED.
(9) PROCESS OR SYSTEM. EVIDENCE DESCRIBING A PROCESS OR SYSTEM USED TO PRODUCE A RESULT AND SHOWING THAT THE
PROCESS OR SYSTEM PRODUCES AN ACCURATE RESULT.
(10) METHODS PROVIDED BY STATUTE OR RULE. ANY METHOD OF AUTHENTICATION OR IDENTIFICATION PROVIDED BY ACT OF
CONGRESS OR BY OTHER RULES PRESCRIBED BY THE SUPREME COURT PURSUANT TO STATUTORY AUTHORITY.

A.

DOCUMENTS
i. 10.1 Authentication: showing what we are offering into evidence is what it purports to be. How can we go
about showing that D is the one who actually signed and sent these forms.

901(b)(2) Nonexpert opinion on handwriting - a witness familiar with his handwriting (p.
306 of rule supplement commentary states doctrine of lay identification of handwriting may be acquired
by seeing him write, exchanging correspondence, or by other means).

901(b)(2) Comparison by trier or expert witness show it to jurors or have expert make
connection

901(b)(4) Distinctive characteristics and the like circumstantial connections i.e. having
wire transfer forms in his suitcase/car
ii. 10.2 901(b)(2) based upon familiarity not acquired for purposes of the investigation. Someone intricate to
case is being asked to id, as a layperson, Ds handwriting based on her research on the case. Second Circuit court
admits it and says that part didnt apply under the circumstances of the case, but the court could have gone either
way on this.
iii. Stelmonkas (1997) DAVIS authenticity questions - in every case like we want to ask if someone was trying to
frame him: (1) Why would anyone seek to frame D? (would they frame such a small player?) & (2) if anyone was
going to frame him is this the way they would do it? (plant docs that would be inaccessible for decades only to be
unearthed many years later?). Allegations that D was involved in murder of Jews during the Holocaust.
Government introduced archived records that clearly demonstrated his enlistment, involvement, and assignments.
901(b)(8) Ancient docs are admissible as exceptions to the hearsay rule provided they are (A) in authentic
condition, (B) in a place where they likely would be located if authentic, and (C) have been in existence for 20
years or more at the time offered. D argues that (A) and (B) are not met in this case. The docs were obtained
from the Lithuanian capital and German sources. 2 experts testified to the authenticity of the docs.
Held: The docs were properly admitted as exception to the hearsay rule (Affirmed.) Their authentic condition
was not in the least suspicious.
B.
PHONE CALLS
i. Clip Hanks calls wife trying to call mistress and wife recognizes his voice - Lay witness identification
ii. Clip Voice recognition - 901(b)(3) comparison by trier of fact possible problem p. 308 example 5
comment since oral voice id is not a subject of expert testimony the requisite familiarity might be acquired

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before . . . Its not likely they were referring to other kinds of expert testimony voice print analysis or other
kinds of technology developed today.
10.4 Robbery at pizza place; later robber calls and asks if everyone is okay; star 69 calls him back; the number
was from another pizza place they go and arrest D.
901(b)(6) might be able to use call tracing (what they were trying to do above in clip)
State v. Small (2007) - D charged w/ murdering Medhin. A friend of the victim testified that the victim believed
his life was in danger because of a debt. On the night of the murder, the victim used friends phone and told the
person who answered that he did not have the $. After victims death, the friend called back the #. The person
who answered had a Jamaican accent and said his name was Dominique. Friend and Dominique discussed
arrangements under which the friend would repay victims debt. Ds wife testified at trial that Dominique was a
nickname small used. The trial court admitted testimony from the friend about the call.
- Statements made during a phone convo in which the D was not specifically identified as one of the parties to
the convo are admissible under the party-opponent admission exception to the hearsay rule if the state can
authenticate that the person speaking on the phone was the D. Used 901(b)(4): The state authenticated the person
to whom Ellos spoke on the phone was Small (i.e. Dominique) through distinctive characteristics that
indicated that the caller could only be Small.
Held: The contents of the convo, characteristics of the speech, or circs of the call made it improbable that the
caller could be anyone else. (Jamaican accent, his claim that Medhin owed him money, and the testimony of
smalls wife
Note: 901(b)(5) or (6) would not work here b/c Ellos did not know Smalls voice
*2 other methods for authenticating phone convos are acceptable for purposes of 801(d)(2)(A), and are less
vulnerable to cross-exam: (1) evidence that the call was made to a number assigned by the phone company to the
person identified; (2) voice ID, where the caller knows the Ds voice
*some courts will admit as to weight, not to admissibility
PHOTOGRAPHS - ASK (1) For what purpose are you offering it? & (2) Is it reliable? (Wagner )
Simms v. Dixon (1972) - The essential test for the admissibility of photos is whether the photos accurately
depict what is shown. A photographer does not need to be present to admit a photo. Photos, models, etc are
admissible so long as a witness testifies, from personal knowledge, that the exhibit fairly and accurately
represents what it is supposed to represent. (i.e. the scene)
- No need to be taken at or near the time of the litigation however it must accurately represent the facts
allegedly portrayed
- No need for the photographer to have seen it, rather just someone who saw the thing from the
perspective
- Staged photos: Admissible if offered to illustrate the victims or another witnesss testimony.
Inadmissible if offered to show the p.o.v. of the shooter at the time he shot the victim (unreliable,
unless there is ndep. evidence to show where the shooter was standing)
- The judge has discretion to exclude demonstrative evidence if he believes it will likely be misleading
or useless (403)
10.6 CGA as a series of computer-generated drawings that show the previously formed opinion of a witness or
witnesses. The prosn offered the CGA to illustrate the expert opinions of its forensic pathologist and crime scene
reconstructionist. The CGA showed the govts theory of how D shot his wife in the lower back and then through
the heart as she knelt on the living room floor.
Option 1: 901(3) analysis : Comparison by trier or expert witness
- First, expert testimony presented to show trajectory without CGA; Then show CGA ask, is it a fair and
accurate representation of the events you just testified to that formed the basis of your opinion?
- if in fact the CGA is accurately reflective of the experts testimony, it would come in (presuming you let the
court/adversary know prior )
- 403 argument will prob fail
Option 2: 901(b)(9): Process/system testify that he constructed the animation
** IDEALLY YOU WOULD DO BOTH OPTION 1 AND OPTION 2
Thelma and Louise Clip: security camera tape from store being robbed. Options: (1) ask a person who was
there if it is a fair and accurate depiction of the robbery (this gives victim 2 chances to tell his story); (2) if no
witness is available, a technical person could be put on the stand to talk about installation and monitoring of the
camera.
- You may not put the cop on the stand to testify that he got the tape from the store clerk a few days after he was

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robbed. This is bc anyone can tamper with a camera. You must have a witness to say it a fair and accurate
depiction
IV. Wagner v. State (Ct of App of FL, 1998) chain of custody issue here covered very briefly
- Cop videotaped a drug deal b/n D & informant. Tape was introduced at trial and the cop testified as to the
installation/ operation of the recording equipment. Informant was unavailable to testify, but another witness
identified D from the tape. Govt used 901(b)(9) [Process/System] proof to authenticate the video tape. On
appeal, D claimed the tape was improperly authenticated.
RULE: Relevant, reliable photographic evidence is admissible upon a consideration of 5 factors (affirmed). This
evidence must be offered to prove whats in it.
5 factors for silent witness authentication (these factors establish reliability)
(1) evidence establishing the time and date of the photographic evidence;
(2) any evidence of editing or tampering;
(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to
the accuracy and reliability of the photographic product;
(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment
used to produce the photographic product, including the security of the product itself;
(5) testimony identifying the relevant participants depicted in the photographic evidence.
902

EXTRINSIC EVIDENCE OF AUTHENTICITY AS A CONDITION PRECEDENT TO ADMISSIBILITY IS NOT REQUIRED WITH

RESPECT TO THE FOLLOWING:
(1) DOMESTIC PUBLIC DOCUMENTS UNDER GOVERNMENTAL SEAL; (2) DOMESTIC PUBLIC DOCUMENTS NOT UNDER SEAL IF
BEARING THE SIGNATURE IN THE OFFICIAL CAPACITY OF AN OFFICER OR EMPLOYEE OF ANY ENTITY INCLUDED IN (1); (3)
FOREIGN PUBLIC DOCUMENTS. DOC EXECUTED UNDER OFFICIAL CAPACITY BY A PERSON AUTHORIZED BY A FOREIGN
COUNTRY & ACCOMPANIED BY A FINAL CERTIFICATION AS TO THE GENUINENESS OF THE SIGNATURE AND OFFICIAL POSITION
(A) OF THE EXECUTING OR ATTESTING PERSON, OR (B) OF ANY FOREIGN OFFICIAL WHOSE CERTIFICATE OF GENUINENESS OF
SIGNATURE AND OFFICIAL POSITION RELATES TO THE EXECUTION OR ATTESTATION OR IS IN A CHAIN OF CERTIFICATES OF
GENUINENESS OF SIGNATURE AND OFFICIAL POSITION RELATING TO THE EXECUTION OR ATTESTATION; (4) CERTIFIED COPIES
OF PUBLIC RECORDS; (5) OFFICIAL PUBLICATIONS. BOOKS, PAMPHLETS, OR OTHER PUBLICATIONS PURPORTING TO BE ISSUED
BY PUBLIC AUTHORITY; (6) NEWSPAPERS AND PERIODICALS. PRINTED MATERIALS PURPORTING TO BE NEWSPAPERS OR
PERIODICALS; (7) TRADE INSCRIPTIONS AND THE LIKE. INSCRIPTIONS, SIGNS, TAGS, OR LABELS PURPORTING TO HAVE BEEN
AFFIXED IN THE COURSE OF BUSINESS AND INDICATING OWNERSHIP, CONTROL, OR ORIGIN; (8) ACKNOWLEDGED
DOCUMENTS. DOCUMENTS ACCOMPANIED BY A CERTIFICATE OF ACKNOWLEDGMENT EXECUTED IN THE MANNER PROVIDED
BY LAW BY A NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED BY LAW TO TAKE ACKNOWLEDGMENTS; (9) COMMERCIAL
PAPER AND RELATED DOCUMENTS. COMMERCIAL PAPER, SIGNATURES THEREON, AND DOCUMENTS RELATING THERETO TO
THE EXTENT PROVIDED BY GENERAL COMMERCIAL LAW; (10) PRESUMPTIONS UNDER ACTS OF CONGRESS; (11) CERTIFIED
DOMESTIC RECORDS OF REGULARLY CONDUCTED ACTIVITY; (12) CERTIFIED FOREIGN RECORDS OF REGULARLY CONDUCTED
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II.
THE BEST EVIDENCE RULE UNLESS YOU ARE REALLY TRYING TO PROVE THE CONTENT OF THE WRITING,
PHOTO, OR RECORDING (YOU ARE OFTEN NOT TRYING TO DO THIS IN A COPYRIGHT CASE YOU WOULD BE
TRYING TO PROVE THE CONTENT)
100
1

100
2
100
3
100
4

(1) WRITINGS AND RECORDINGS. "WRITINGS" AND "RECORDINGS" CONSIST OF LETTERS, WORDS, OR NUMBERS, OR
THEIR EQUIVALENT, SET DOWN BY HANDWRITING, TYPEWRITING, PRINTING, PHOTOSTATING, PHOTOGRAPHING,
MAGNETIC IMPULSE, MECHANICAL OR ELECTRONIC RECORDING, OR OTHER FORM OF DATA COMPILATION.
(2) PHOTOGRAPHS. "PHOTOGRAPHS" INCLUDE STILL PHOTOGRAPHS, X-RAY FILMS, VIDEO TAPES, AND MOTION
PICTURES.
(3) ORIGINAL. AN "ORIGINAL" OF A WRITING OR RECORDING IS THE WRITING OR RECORDING ITSELF OR ANY
COUNTERPART INTENDED TO HAVE THE SAME EFFECT BY A PERSON EXECUTING OR ISSUING IT. AN "ORIGINAL" OF A
PHOTOGRAPH INCLUDES THE NEGATIVE OR ANY PRINT THEREFROM. IF DATA ARE STORED IN A COMPUTER OR SIMILAR
DEVICE, ANY PRINTOUT OR OTHER OUTPUT READABLE BY SIGHT, SHOWN TO REFLECT THE DATA ACCURATELY, IS AN
"ORIGINAL".
(4) DUPLICATE. A "DUPLICATE" IS A COUNTERPART PRODUCED BY THE SAME IMPRESSION AS THE ORIGINAL, OR FROM
THE SAME MATRIX, OR BY MEANS OF PHOTOGRAPHY, INCLUDING ENLARGEMENTS AND MINIATURES, OR BY
MECHANICAL OR ELECTRONIC RE-RECORDING, OR BY CHEMICAL REPRODUCTION, OR BY OTHER EQUIVALENT
TECHNIQUES, WHICH ACCURATELY REPRODUCES THE ORIGINAL.
TO PROVE THE CONTENT OF A WRITING, RECORDING, OR PHOTOGRAPH, THE ORIGINAL WRITING, RECORDING, OR
PHOTOGRAPH IS REQUIRED, EXCEPT AS OTHERWISE PROVIDED IN THESE RULES OR BY ACT OF CONGRESS.
A DUPLICATE IS ADMISSIBLE TO THE SAME EXTENT AS AN ORIGINAL UNLESS (1) A GENUINE QUESTION IS RAISED AS
TO THE AUTHENTICITY OF THE ORIGINAL OR (2) IN THE CIRCUMSTANCES IT WOULD BE UNFAIR TO ADMIT THE
DUPLICATE IN LIEU OF THE ORIGINAL.
THE ORIGINAL IS NOT REQUIRED, AND OTHER EVIDENCE OF THE CONTENTS OF A WRITING, RECORDING, OR
PHOTOGRAPH IS ADMISSIBLE IF-- (1) ORIGINALS LOST OR DESTROYED. ALL ORIGINALS ARE LOST OR HAVE BEEN
DESTROYED, UNLESS THE PROPONENT LOST OR DESTROYED THEM IN BAD FAITH; OR (2) ORIGINAL NOT OBTAINABLE.
NO ORIGINAL CAN BE OBTAINED BY ANY AVAILABLE JUDICIAL PROCESS OR PROCEDURE; OR (3) ORIGINAL IN
POSSESSION OF OPPONENT. AT A TIME WHEN AN ORIGINAL WAS UNDER THE CONTROL OF THE PARTY AGAINST WHOM
OFFERED, THAT PARTY WAS PUT ON NOTICE, BY THE PLEADINGS OR OTHERWISE, THAT THE CONTENTS WOULD BE A
SUBJECT OF PROOF AT THE HEARING, AND THAT PARTY DOES NOT PRODUCE THE ORIGINAL AT THE HEARING; OR (4)
COLLATERAL MATTERS. THE WRITING, RECORDING, OR PHOTOGRAPH IS NOT CLOSELY RELATED TO A CONTROLLING
ISSUE.

PROBLEM 10.7 NOTE: trial court allowed the evidence; court called counsel to the bench and said to the prosecutor,
of course you have the right to proceed, it seems when you have a case of perjury and a transcript you should put it
in evidence instead of proving what it said by a witness memory.
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UNIT 3: PRIVILEGES CHAPTER 11 PRIVILEGES GENERAL PRINCIPLES
501

I.

a.

EXCEPT AS OTHERWISE REQUIRED BY THE CONSTITUTION OR BY ACT OF CONGRESS OR IN RULES PRESCRIBED BY THE
SUPREME COURT PURSUANT TO STATUTORY AUTHORITY, THE PRIVILEGE OF A WITNESS, PERSON, GOVERNMENT,
STATE, OR POLITICAL SUBDIVISION THEREOF SHALL BE GOVERNED BY THE PRINCIPLES OF THE COMMON LAW AS
THEY MAY BE INTERPRETED BY THE COURTS OF THE UNITED STATES IN THE LIGHT OF REASON AND EXPERIENCE.
HOWEVER, IN CIVIL ACTIONS AND PROCEEDINGS, WITH RESPECT TO AN ELEMENT OF A CLAIM OR DEFENSE AS TO
WHICH STATE LAW SUPPLIES THE RULE OF DECISION, THE PRIVILEGE OF A WITNESS, PERSON, GOVERNMENT, STATE, OR
POLITICAL SUBDIVISION THEREOF SHALL BE DETERMINED IN ACCORDANCE WITH STATE LAW.

Privileges - special treatment to a variety of confidential communications, keeping them from the trier of fact
Testimonial privilege arose from the idea that parties to a proceeding were not competent as witnesses in that
case. Later on CL changed to allow a husband/wife to testify for the other based on the fact that any bias could
be brought out on cross-examination
Proposed Rules 501-513 were never enacted; would have established several general principles of privilege law
and 9 specific evidentiary privileges (p. 354 in rule book outlines these proposed rules
(1) real diversity among states concerning privilege law; (2) some privileges were inexplicably left out of
proposal (i.e. no inclusion of marital privilege; proposed 505 did allow accused in criminal proceeding to
prevent spouse from testifying against him, but that was not a true privilege)
As for the rejected privilege rules, they survive in more than mere memory. The Senate wrote that the rejection
of privilege rules did not reflect disapproval for the rules, but rather the idea that privileges should be a case-bycase determination. Allows federal courts to define new privileges, in criminal cases & federal question civil
cases, by interpreting common-law principle in light of reason and experience recognized that the
recognition of privileges would change over time. In diversity cases, the state whose substantive law applies also
supplies the law of privilege.
Important ways privileges rules are different than other rules: Generally, other rules are meant to keep out
evidence that isnt reliable of trustworthy; Privileges look to external policies; keep evidence out, even if reliable,
to promote social goals
Info conveyed in a privileged communication cannot be brought into a trial and cannot be subject for discovery,
even though the statement may be relevant to the issue - only the actual STATEMENT made in confidential
relationships are kept secret by privileges. the privilege does not protect against revealing the INFO a client
knows whether or not the client may have communication that info in privileged convos
Rationale: communications are socially desirable, and people would be less likely to make them if they were not
privileged. Other theories include: state should not intrude on personal relationships; privileges show govts
interest in corrupting the search for truth to benefit powerful social groups (like lawyers)
Psychotherapist-patient Privilege
*Note: courts never recognized a physician-patient privilege, but the Supreme Court used 501s implicit grant of
rulemaking authority to formulate a psychotherapist-patient privilege of the sort embodied by proposed rule 504.
i. Jaffee v. Redmond (1996) established a psychotherapist-patient privilege - Officer shot and killed a
man; went to therapy after having trouble dealing with it (50 sessions with a clinical social worker).
Estate of the deceased wants access therapy session records. D argues the convos should be privileged.
Court holds that confidential communications between a psychotherapist and her patients in the
courts of diagnosis and treatment are protected from compelled disclosure under 501.
501 instructs courts to look to: (1) Experience: All 50 states have some form of the psychotherapist
privilege; and (2) Reason: without the privilege, patients will not disclose incriminating statements to
therapists; The public end is to open discourse promotes mental health of the patient
Court does not want to water down the privilege: It rejects the 7th circuits balancing component
because if the purpose of the privilege is to be served, people must be able to predict with some degree of
certainity whether particular discussions will be protected.
Dissent (Scalia, Rehnquist): If the privilege exists, it should not extend to the social worker. Officers
shouldnt get the benefit of psychotherapy and the benefit of keeping it out of court
ii. 11.1 its clearly a privilege but are there arguments that it might not always apply
1. No expectation of privacy - p. 369 of rulebook --- communication is confidential if not intended
to be disclosed to third persons other than those present well clearly if he made threats in these

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convos knowing the threats had to be disclosed, he could have never expected the threat to be kept
in confidence, thus its just not privileged materials. Fifth Circuit held there is a privilege, but this
wasnt privileged information because it wasnt made in confidence.
2. Dangerous Patient Exception (FN 19 in Jafee) we do not doubt there are situations where
privilege must give way if a serious threat of harm to the patient or to others can be averted only by
means of a disclosure by the therapist.
a. United States v. Chase, 340 Fed.3d 978 (9th Circuit 2003); United States v. Hayes, 227 Fed.3d
578 (6th Circuit 2000) both courts declined to recognize this exception that there
circumstances would render the privilege inapplicable. The privilege exists to encourage full
communication bw patient and therapist and its necessary. Strong dissenting opinions
advocating for this exception.
Reporter-Source Privilege: Almost all circuit courts recognize a qualified reporters privilege. 31 states have
shield laws protecting journalists anonymous sources. Note: privilege attaches to the reporter; not the source
(opposite of other professional privileges, where client / patient holds the privilege)
i. In Re Grand Jury Sobpoena, Judith Miller (D.C. Circuit, cert. denied 2005) Scooter Libby Case;
reporters refused to divulge sources for published stories about certain covert government operations.
District Court put her in jail for 85 days. (1) Reporter source identities are not protected under 1A
(Branzburg v. Hayes). (2) While 3 members of the court differ about whether there is a common law
privilege, all agree that if there is, it is not absolute and may be overcome in appropriate circumstances.
Sentelle Concurrence: reporters refusing to testify before grand jury have no CL privilege. Issue for the
legislature.
Henderson Concurrence: We are in agreement if there is a privilege it doesnt apply here, so we
shouldnt even reach the question here- consequences of a breach of national security is too great here.
Tatel Concurrence: 501 delegates to courts congressional authority w/ respect to CL privilege; There
should be a CL privilege, however, the privilege cannot be absolute. We should look at the underlying
public interest in having a privilege, and what would be the harm. In this case, the damage to the covert
intelligence-gathering function is greater than the news value
**Note: Branzburg v. Hayes - Almost every privilege has less power in the grand jury context. We
balance the need for the publics right to know against the grand jurys need to determine if a crime has
been committed
ii. Note. rights meets privilege privilege belongs to communicant so can mother waive right of child; this
was an unauthorized disclosure because child never waived it
Priest-Penitent Privilege - protects confidential communications made to a member of the clergy when that
person is acting in a religious capacity. (extends past death of the privilege holder)
- Includes any person reasonably believed to be a clergyman & only applies to religious matters in which some
sort of religious advice or solace is sought.
Rationale: sacred communication that shouldnt be sullied by bringing it into court. *Some jurisdictions require
it to be a formal discussion whereas others extend it to any discussion.
i. Morales v. Portuondo (SDNY 2001) - Witness Privilege v. Ds Need for Evidence Sometimes, even
though there is a privilege and its appropriate for it to be invoked, the privilege might have to give way to
another compelling circumstance (i.e. constitutional right to 6A). Fornes approached Father Towle, Legal
Aid, and convicted Ds mom & lawyer w/ confession that he was the murderer, not the 2 convicted.
Convicted Ds lawyer files a motion to set aside the verdict, but Fornes pled 5A & refused to testify. Legal
Aid attorney and Priest could not testify due to privilege. Years later, Fornes died in an accident and Father
Towle signed an affidavit attesting to Forness statements to him. Morales filed a writ of habeas corpus. A
D may introduce hearsay statements made under indicia of reliability that would not otherwise be
admissible if the exclusion of these statements would amount to a denial of the Ds right to a trial in
accord w/ traditional and fundamental standards of due process. Fornes confession to 4 different people
indicate its trustworthy, they were made in circumstances where he had no motive to lie, he seemed
remorseful, and the statements were full of guilt
-- Had his statements been a formal confession, Father couldnt reveal them, even after Fornes death. But
here, even though death does not dissolve the privilege, exclusion statements would render Ds trial
fundamentally unfair. Chambers v. Ms. allowed statements admissibility in these circs. **6A trumps
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ii. Mark Furhman on stand pleading 5A right- There are some cases if witness has testified fully in direct
but clams up on cross, can order that the direct testimony be stricken, but this wasnt such an example here
------------------------------------------------------------UNIT 3: PRIVILEGES CHAPTER 12 LAWYER-CLIENT PRIVILEGE
Lawyer-Client Privilege 502: the oldest and most frequently asserted professional privilege
(A) SCOPE OF WAIVER. WHEN THE DISCLOSURE IS MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR AGENCY AND WAIVES THE
ATTORNEY-CLIENT PRIVILEGE OR WORK-PRODUCT PROTECTION, THE WAIVER EXTENDS TO AN UNDISCLOSED COMMUNICATION OR INFORMATION IN
A FEDERAL OR STATE PROCEEDING ONLY IF: (1) THE WAIVER IS INTENTIONAL; (2) THE DISCLOSED AND UNDISCLOSED COMMUNICATIONS OR
INFORMATION CONCERN THE SAME SUBJECT MATTER; AND (3) THEY OUGHT IN FAIRNESS TO BE CONSIDERED TOGETHER.
(B) INADVERTENT DISCLOSURE. WHEN MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR AGENCY, THE DISCLOSURE DOES NOT
OPERATE AS A WAIVER IN A FEDERAL OR STATE PROCEEDING IF: (1) THE DISCLOSURE IS INADVERTENT; (2) THE HOLDER OF THE PRIVILEGE OR
PROTECTION TOOK REASONABLE STEPS TO PREVENT DISCLOSURE; AND (3) THE HOLDER PROMPTLY TOOK REASONABLE STEPS TO RECTIFY THE
ERROR, INCLUDING (IF APPLICABLE) FOLLOWING FEDERAL RULE OF CIVIL PROCEDURE 26(B)(5)(B).
Rationale - to encourage full and frank communication bw attorneys and clients and thereby promote the broader public interests in

observance of law and administrative justice. (J. Stevens in Jaffe)

Anatomy of a Murder Clip lawyer explaining the letter of the law to his client; he explains how he could defend
him on murder charge. What you need is a legal peg so the jury can hang their sympathy on your behalf. You need an
excuse. Client: Was I crazy? Attorney: Perhaps in the meantime think about how crazy you were. *Holds his hand
toward temporary insanity defense
(1) It is the clients only the client or professional on her behalf may assert privilege
(2) It protects only those confidential communications made to facilitate professional services - friendly
chats do not qualify (Gionis Forness heart to heart talk with Father Towle) - not Can-A-Man privilege
if a friend asks a lawyer can a man do this, probably not protected; nor do talks made to a lawyer acting as a
lobbyist or business agent (not as law advisor)
(3) It protects only confidential communications
Defining Confidentiality - Approaches for considering inadvertent waiver: (1) Traditional SL party is
responsible for their own accidents; (2) Intent-based (lenient) waiver is like relinquishment of rights, it cannot be
inadvertent; and (3) **Inadvertent Disclosures Balancing Factors (1) reasonableness of precautions taken to
prevent the disclosure; (2) time taken to rectify the error; (3) scope of discovery; (4) extent of disclosure; and (5)
fairness
Howell v. Joffee Lynch, lawyer, and client left a voicemail for Howell (P). They dont hang up the phone so
continued convo is recorded. Ds sought to exclude msg under att-cl privilege. Privilege applies where
communication originated in confidence that it would not be disclosed & was made to an attorney in
his legal capacity for the purpose of securing legal advice or services. Primary purpose of Ds convo was
to share info protected by privilege. Despite some extraneous comments, they are still protected.
Koch Foods of Alabama v. GE (2008) Email exchange bw CFO & Counsel accidentally included in a
discovery package from (P) to D. Immediately after it was sent, P objected that it was privileged and should
be returned. P intended to assert privilege. Mistake of 1 single piece of paper among 3, 758 pages was not a
failure to adequately review docs disclosed; privilege was not waived.
Defining Communications: Source of Fees and Clients Identity - fine line between fact and confidential
communications just because its verbally communication, historically thats not regarded as confidential
communications
Osterhoudt (9th Cir. 1983) leading modern case; citing an earlier 9th circuit case, Baird v. Koerner tax layer
jailed for refusing to disclose who hired him to pay unpaid taxes. Normally its whats said and not who said
it. Osterhoudt case said Baird properly claimed his clients privilege in refusing to disclose their identities.
Generally identity is not a confidential conversation
12.3 Dietz v. Doe (1997) there might be circumstances, like Baird case, where you might not be compelled to
divulge identity of the client if the clients identity can be seen as something intertwined with the
confidential communications
12.5 If a client paid you w a phony bill that would have nothing to do with why he came to see you, thats an
attenuated circumstance. So being asked to reveal that clients identity you arent revealing something told to
you in confidence.
Duration of Privilege

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Swidler & Berlin v. United States (1998) District Court said privilege didnt die with client. D.C. Circuit
reversed weighing value of privilege v publics right to know in a criminal case, concluding the need to
know here outweighs the lawyer-client privilege. Supreme Court doesnt like the balancing test. Balancing
ex post the impt of info against client interests, even in crim cases, introduces substantial uncertainty into the
privileges application and for just that reason we reject its use in defining the controus of the privilege. See
Jaffee. *Noted that since courts have decided on exceptions/waiver after death, they implicitly concluded
that it survived death.
12.7 - Crime fraud exception waiver to attorney-client privilege patient saying something to a therapist
along the lines of making threats to other people, psychotherapist might have an obligation to warn the
targets of those threats.
Proposed 503 not accepted but 501 leaves it up to the court to adopt CL privileges, which the Court has
done (Jaffee- psychotherapist privilege and later the attoney client privilege). Courts frequently look to
proposed rules for guidance.
Maybe this fits under crime-fraud exception but its weak here she wasnt asking for his help or
assistance, maybe thats why he said you cant involve me in this maybe she was leading up to ask him
Newman, 384 Md. 285
Purcell case - the privilege didnt really apply here because separating the ethics rule from the rules of
evidence, they are different. Because he was under an obligation to disclose this, does not say that the same
thing applies to the lawyer-client privilege it pits the client and the lawyer against one another and thats
something that the privlege was designed to prevent
**there might be an ethical duty to disclose, but that doesnt operate as a waiver of the privilege
Q that the court is addressing: whether the district court should be able to listen to or read a transcript of all of
these taped conversations in order to decide if this information is privileged
P. 924 the district courts ruling that the court cant look at this information, is described by the Supreme
Court as a Draconian interpretation of 104(a) inconsistent with the rules
They reverse in part/affirm in part but send back to 9th circuit to redetermine based on the ruling that the
court can look at the privileged material in order to decide if (1) it is privileged and (2) if the crime-fraud
exception applies
9th circuit reverses and finds that it does fit the crime fraud exception, so there is a waiver for the privilege
Government Lawyers - p. 930 white water scandal during the Clinton administration, Lindsey case Monica
Lewinsky scandal, Ryan case the need for this evidence may outweigh the underlying rationael for the privilege
All three of the courts in these cases have held the same way
- They dont want to get into the privilege and dont want to recognize another exception to it
Fn 4 on page 933: our decision is in conflict with Ryan and in sharp tension with In Grand Jury and Lindsey case
uniformity fosters predictability and suppresses forum shopping, but we are in no position to resolve this tension in
the law. They are almost inviting the Supreme Court to resolve this difference, which the Court has not done thus far
------------------------------------------------------------UNIT 3: PRIVILEGES CHAPTER 13 THE MARITAL PRIVILEGE (TESTIMONIAL PRIVILEGE)
- Different than the other privileges we have seen; the marriage communication privilege is a true privilege bc it protects the
confidentiality of the relationship and encourage free communication
HISTORY - It was originally written that a wife was incompetent to testify for or against her husband
A.
I.

SPOUSAL TESTIMONIAL PRIVILEGE

Trammel v. United States (1980) departed from the Hawkins rule and holds that the privilege belongs to the
witness spouse so if the witness is willing to testify then he/she can, but if the spouse invokes the privilege than
that spouse doesnt have to testify.
Why did the Court take a different view of this approach? It is to preserve marital harmony, so if you have a
willing spouse-witness how much marital harmony is there that needs protection
Sp Ct said in Hawkins at that time the privilege belonged to the defendant spouse and we left the door open to
change it in light of reason and experience
- In return for lenient treatment, wife, an unindicted coconspirator, agreed to testify against her husband at his
trial for conspiracy to import and importing heroin. H argued that he was entitled to invoke the spousal test.
privilege to exclude the voluntary testimony of his wife. Held: A crim D CANNOT prevent his spouse from

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voluntarily giving testimony against him b/c the privilege against adverse spousal testimony belongs to the
testifying spouse.
Fed Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary
development of testimonial privileges in federal criminal trials. I.E. p. 374 of rule book proposed rule 501
(not adopted) testimonial privilege that we are looking at here, not the classic spousal privilege thats like
lawyer client, psychotherapist-patient, priest-penitent bc its a testimonial privilege
501(b) who may claim the privilege
Underlying support for Hawkins has eroded. At the time of Hawkins 31 states allowed an accused a privilege to
prevent adverse spousal testimony, now the trend is toward diversting the accused of the privilege p. 959
II. Exceptions to spousal testimonial privilege: gov. can compel spouse to testify when (1) they litigate against
each other; (2) in a criminal proceeding that involves a charge of intra-familial wrongdoing such as assault
on a spouse or child; societys needs to deter and punish criminal acts in marriages exceeds the needs to foster
privacy in a relationship that is marked by violence; (3) Joint participation exception to spousal privilege - a
developing post-trammel concept which is not adopted in every jurisdiction
**If H and W are both involved in a drug conspiracy, the govt can force the W to testify against him by giving
her immunity. Rationale is that they have forfeited the right to claim a privilege but engaging in criminal activity
iii. Repeat clip guy takes his dog out and accidentally dials his wife and asks for Maria (mistress); Maria is later
found dead, can his wife testify against him?
Phone call - with respect to him, spousal privilege doesnt apply because he didnt have intent, but with respect
to her, she knew it was him
Spousal Privilege

Testimonial Privilege

Crim/Civ/Both

Both

Criminal only

Who may assert?

Does privilege survive
marriage?
Phone call

Both/Either
Yes

Mostly the witness spouse

No

H- No/W- Yes

Yes not concerned with intent/who you think you are

talking to bc in the majority of states its the spouses
decision and if spouse wants to testify thats fine or if
privilege is Ds its his perogative and the phone
doesnt matter

Bedroom conversation
Rationale

Yes
True privilege arising out of the nature of
the marital relationship, to encourage
communication between the two parties
and to preserve confidentiality/privacy

Yes
Preserve marital harmony thus if a spouse is willing
to testify then theres nothing to preserve

B.

THE MARITAL CONFIDENCES PRIVILEGE

i. 13.1 sends wife email from desktop computer he invokes marital confidences privilege. Court concluded that
this was not privileged because (1) businesses disclosure policy about monitoring work emails and no
expectation of privacy; (2) flash screen that policy was displayed each log in, thus there was no expectation of
privacy
4 factors to consider: (1) Does corp./entity maintain a policy banning personal/objectionable use? (2) Does co
monitor the employees computer use? (3) Do third parties have a right of access to the computer/emails? (4) Did
corp. notify employee or was employee aware of use/monitoring policies?
ii. 13.2 wife leaves note bc shes aware of husband and his sisters illegal activity. If the children could have read it
would that make a difference? This was clearly something that was intended to be confidential
iii. United States v. Rakes (1998) - Topic of conversation doesnt really affect the application of the privilege unless
it sheds some light one way or the other of whether this convo was intended to be in confidence
iv. 13.3 criminal D wanting to use womans testimony and husband/wife privilege is being claimed
-remember back to Chambers constitutional right to confront witnesses and most typically that will trump any
privilege. 7th circuit might have analyzed this case under Chambers, but they really dont rely on it. Instead they
used Rock v. Arkansas (mentioned in our casebook) p. 676 Court held that restrictions of a Ds right to testify
may not be arbitrary or disproportionate to the purposes they are designed to serve. So the 7th circuit in this case
concluded that D must show that the privilege was arbitrary or disproportionate to its purposes and he hadnt

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done that. *Davis this is kind of an unusual decision
Final Note Brothers Keeper fine line between mistrust and blind faith in our jury system why we purify our
evidence through a strainer.

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