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 Rule 101. Scope; Definitions
 Rule 102. Purpose
 Rule 103. Rulings on Evidence
 Rule 104. Preliminary Questions
 Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
 Rule 106. Remainder of or Related Writings or Recorded Statements
 Rule 201. Judicial Notice of Adjudicative Facts
 Rule 301. Presumptions in Civil Cases Generally
 Rule 302. Applying State Law to Presumptions in Civil Cases
 Rule 401. Test for Relevant Evidence
 Rule 402. General Admissibility of Relevant Evidence
 Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
 Rule 404. Character Evidence; Crimes or Other Acts
 Rule 405. Methods of Proving Character
 Rule 406. Habit; Routine Practice
 Rule 407. Subsequent Remedial Measures
 Rule 408. Compromise Offers and Negotiations
 Rule 409. Offers to Pay Medical and Similar Expenses
 Rule 410. Pleas, Plea Discussions, and Related Statements
 Rule 411. Liability Insurance
 Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition
 Rule 413. Similar Crimes in Sexual-Assault Cases
 Rule 414. Similar Crimes in Child Molestation Cases
 Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
 Rule 501. Privilege in General
 Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
 Rule 601. Competency to Testify in General
 Rule 602. Need for Personal Knowledge
 Rule 603. Oath or Affirmation to Testify Truthfully
 Rule 604. Interpreter
 Rule 605. Judge’s Competency as a Witness
 Rule 606. Juror’s Competency as a Witness
 Rule 607. Who May Impeach a Witness
 Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
 Rule 609. Impeachment by Evidence of a Criminal Conviction
 Rule 610. Religious Beliefs or Opinions
 Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
 Rule 612. Writing Used to Refresh a Witness’s Memory
 Rule 613. Witness’s Prior Statement
 Rule 614. Court’s Calling or Examining a Witness
 Rule 615. Excluding Witnesses
 Rule 701. Opinion Testimony by Lay Witnesses
 Rule 702. Testimony by Expert Witnesses
 Rule 703. Bases of an Expert’s Opinion Testimony
 Rule 704. Opinion on an Ultimate Issue
 Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion
 Rule 706. Court-Appointed Expert Witnesses
 Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
 Rule 802. The Rule Against Hearsay
 Rule 803. Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available
as a Witness
 Rule 804. Hearsay Exceptions; Declarant Unavailable
 Rule 805. Hearsay Within Hearsay
 Rule 806. Attacking and Supporting the Declarant’s Credibility
 Rule 807. Residual Exception
 Rule 901. Authenticating or Identifying Evidence
 Rule 902. Evidence That Is Self-Authenticating
 Rule 903. Subscribing Witness’s Testimony
 Rule 1001. Definitions That Apply to This Article
 Rule 1002. Requirement of the Original
 Rule 1003. Admissibility of Duplicates
 Rule 1004. Admissibility of Other Evidence of Content
 Rule 1005. Copies of Public Records to Prove Content
 Rule 1006. Summaries to Prove Content
 Rule 1007. Testimony or Statement of a Party to Prove Content
 Rule 1008. Functions of the Court and Jury
 History - Congress enacted modern FRE in 1975 and SCOTUS has authority to amend
o Originally SCOTUS appointed advisory committee to promulgate rules of evidence, and congress passed a
statute preventing the rules from going into effect due to their controversial nature
o 3 reasons why it was controversial - expansive rule of executive privilege, no doctor-patient privilege,
contained a broad liberalization against the rule of hearsay
o Congress bolstered hearsay rule to make it more exclusionary.
 Adoption - Majority of states have adopted FRE:
o Exceptions: NY, IL, CA
o CA has own rules, NY does not have own rules but use common law
 Importance of Evidence
o Must be evidence to support the claim of the person bringing the claim and the question of the lawyer is
what do you do with the evidence-how do you get it in front of the jury; there are rules that will regulate
the introduction of the evidence into court so that you can get it in front of a fact finder to rule in your
claim-regulate type of evidence and whether or not it is admitted
o Evidence is a lot about persuasion so you have to use your powers of persuasion
 Why do we have rules?
o A lot of the rules are based on policy-there are reasons why the rules were developed in CL and it is
important to understand the policy behind the rules that allow the juries to make a decision on a sound
basis based on the evidence (not bias or emotion etc) [how juries weigh evidence is important because
there are things that are proper and improper]
 Protect factfinders- Want to make sure that the jurors cannot be misled
 Efficiency- make sure there is a beginning and end to the litigation
 Reliability- want to make sure that the evidence is reliable
o Most states have adopted similar principles from the federal rules
o The rules will be beneficial when trying to negotiate because knowing what you have of evidence that
will get in or not get in will be more effective
o The cases will help show how important facts are because what may be admissible in Case A, the same or
similar evidence may not be allowed to be admitted (may not be relevant)-evidence is very fact specific
and you must pay attention to the nuances
 Types of evidence where rules apply (see below also)
o Oral testimony (and different witnesses)
o Real [physical] evidence
o Documentary evidence
o Demonstrative evidence (charts, ppts, computer simulations, videos, photos etc used to tell the story)
 Evidence is NOT anything that the judge or the lawyer says-evidence is very specific and only what is admitted
by the judge and what is placed before the jury
 "The Three R's of Evidence"
o Relevance – Anything that tends to show that any fact is more or less likely. Very low
o Reliability – Must show that the evidence is reliable for the offered purpose. Must be analyzed
in light of the relevant purpose. Trusted for its accuracy.
o Right – Do not want prejudicial information to sway the jury to make decisions on things other
than based on the facts.
 Policy and the FRE: Evidence and Inference in the Law (Hart/McNauthon)
 Legal use of evidence: the adversarial parties attempt to cull the available evidence to communicate to the
trier of fact the portion of the “truth” that they believe will win them the case
o Law does not demand that the absolutely correct decisions be made→ interested instead in settling
 FRE has dual use:
o Settling disputes and finding the truth, w/ an emphasis on the former
 Reasons for American Ev. Law:
o Bifurcated fact/finding btwn jury and judge: Protect jury from misleading/unreliable evidence
o Adversary nature of court disputes- parties have motive to twist/distort evidence
 Rules with Extrinsic Goals:
o Privileges
o FRE 407: promote remedial measures
o FRE 408: Offers in Compromise: promotes settlement
o FRE: Rape Shield Laws- encourage victims to testify
 Stipulations
o Use: May relate either to procedure or evidence; Unless vacated by trial court, prevents those who enter
into it from offering evidence to dispute it
o Voluntary agreement entered into between counsel for the parties respecting some matter that is before
the court; can relate to either procedure or to evidence.
o Form
 Complicate stips (like complex hypothetical situations) are usually written out beforehand
 Simple stips are stated for record extemporaneously
 Evidentiary stipulation asks to admit or concede specified facts, relieving a party of the burden of
making full-scale proof
o Issues: stipulating that a doc is what it purports to be does NOT eliminate right to assert objections based
on evidentiary rules (ex. relevance) p 10
 Offering Evidence
o Laying the foundation for admission of evidence
 Use: for Witness testimony or exhibit that the witness is sponsoring; occurs before direct
examination of merits of witness’ testimony
 Factors to establish:
- That witness is percipient (in a spatial and temporal position to obtain personal knowledge of
the matters about which he is to testify)- FRE 602
- Relevance:
 Vital component is time factor (ex that a photograph accurately represents scene at the
time of the incident)
- The existence of the essential elements of the evidentiary principle on which counsel intends to
 Ex. past recollection recorded (FRE 803(5)), business record (FRE 803(6))
o Direct Examination of Witnesses
 Impermissible Questions:
- Leading questions: suggests its own answer
 Exception: permitted on a) preliminary matters that do not go to heart of case, and to
provide a transition from one subject of inquiry to another; b) undisputed matters where
question is used as a connective; c) an adverse or hostile witness; d) allowed during direct
when witness gives surprise answers (although; e) witnesses with limited understanding;
f) witness whose recollection has been exhausted; g) hypotheticals
- Compound or Leading questions
 Negatives in questions also worth avoiding
- Loaded Questions: assume unproved or unconceded facts
 Expert Witnesses: Direct different from other witnesses
- Expert witness must be “qualified”: Rule 702 states a witness may be qualified as an expert “by
knowledge, skill, experience, training, or education” (ex. kid who collected bugs)
- Allowed to state opinion or conclusion if four factors are established (p 15)
- Hypotheticals
 Under Fed Rule 705: NOT necessary to lay out ALL of the underlying facts (p21)
 Vs. some state rules
o Cross Examination: fewer restrictive rules
 Guidelines: Relevance is the principle test of a cross-question’s propriety > whether cross questions
range too far beyond contours of opposing counsel’s direct examination
 Purpose: challenge witness’ ability to remember/ perceive/ describe events accurately, extract
admissions that undermine direct testimony, impeach witness veracity (through cross-ex, prior
inconsistent statements, or prior bad acts), show bias or prejudice
 Questioning
- Permissible: Leading questions
- Impermissible: excessively argumentative, loaded questions (Assume unproved facts), otherwise
confusing questions
 Expert witnesses: “voir dire.” Opposing counsel is entitled to engage in cross ex as to witness’
expertise before examining counsel gets into substantive questions.
o Tangible Evidence
 Writing
 “Real Evidence”
- Procedure for admitting Real Evidence:
 1) Mark for identification (Then show to judge and opposing counsel)
 2) Lay Foundation (FRE 901): identifying witness to sponsor exhibit, authenticate it, and
show relevance
o if witness unable to identify exhibit to exclusion of all similar objects: must trace
chain of custody, without any hearsay links
o if object’s condition is significant, show condition hasn’t changed
 3) offer the exhibit into evidence
 4) securing an express ruling on record
 5) precautionary measure: scratch out “for identification”
 6) showing or reading exhibit to jury (request permission from judge)
- Testimonial exhibits (ex depo, learned treatise) usually must be read into record
 Demonstrative evidence
- Two types: 1) selected; 2) prepared or reproduced (greater risk of fabrication or distortion)
- Foundation: 1) that exhibit is not significantly different from that existing at time of events in
question; 2) that exhibit is a true and fair rep. of what it purports to show
 Writings
- Procedure: 1) must be authenticated (including making a record of authorship); 2) if not original,
counsel must show compliance with the “best evidence” rule (FRE Art X)
 Judicial Notice
- A form of evidence, substituting for more elaborate proof of facts (p36)
 Stipulations
- Parties agree
 Circumstantial evidence
- Rules of evidence do not use this phrase
- Any evidence that requires the jury to make an inference (v. direct evidence)
- In the eyes of the law; as a legal matter, the law makes no distinction between direct evidence
and circumstantial evidence, so circumstantial evidence may not be “lesser” evidence
 A verdict can rest completely on circumstantial evidence
 Objections to Evidence
o Responsibility: lies with counsel, not judge
o Timing
 During Examination
- Reasons to forego: expediency, underscore hurtful testimony, favors her own client, perception
by jury, opens door for more evidence counsel wants to explore
- Timing: must be made as soon as basis for objection becomes apparent; failure results in waiver
of complaint of evidence’ receipt
 Sometimes, apparent only later
 Where admissible for one purpose but not another, limiting instruction
- Only examining counsel may object to answer for lack of responsiveness (p 39)
 Objecting to Exhibits
- Timing: when exhibit formally offered (during foundation typically premature)
 Motions in limine: pre-trial motion for admission or exclusion or controversial item of
o Specificity of Objections: codes and cases recommend that any objection be accompanied by a
reasonably specific statement of the grounds for it (ex. FRE 103(a)(1))
 Ex. Improper character attack/ Rule 404 vs. irrelevant and prejudicial
 On appeal
- where a specific objection (objection, hearsay) is erroneously overruled, record will support
reversal if evidence is unfairly prejudicial.
- Where objection improperly sustained, but there existed another proper basis, review favors
judge (and objecting counsel)
o Other issues
 Repeating Objections/ Standing objections
 Necessity for obtaining a ruling
o Examples of Trial Objections (p 68)
 Accrediting witness before impeachment
 Argumentative (argument that should be saved for final argument)
 Asked and answered: 1) repetitious; or 2) objection has been forfeited because opponent did not
object until after witness answered
 Assumes a fact not in evidence (cant be asked on cross either)
 Authentication lacking
 Best evidence Rule (objection- Not the best evidence)
- When original not available, then foundation must est that writing recording or photo was lost
or stolen, destroyed in good faith, in someone else’s hands and not obtainable by judicial
process, or in possession of opponent
 Offer of Proof: a specific offer of what the examining attorney expects to prove by the answer of the witness
(court may require offer to be made outside of hearing of jury); Distinguished from offer of evidence (See FRE
o Use: Usually during direct examination of witness, after objection; Offer of proof made with no witness
on stand (p 55)
 2 purposes: (1) if properly made, t will permit the trial court to make a fully informed and correct
ruling on the objection; (2) if the ruling is adverse to the introducing party and arguably erroneous,
an adequate offer of proof is ordinarily essential to preserve the point for post-trial review
o Methods:
 1) tangible offer (admissible in entirety)
 2) witness offer- meaning and purpose of evidence (adverted to in Rule 103(b))
 3) lawyer offer: statement that excluded evidence would have been relevant, admissible and
beneficial to client (adverted to in Rule 103©; usually made out of jury’s presence)
 Jury Instructions
o Record of Jury instructions given and refused
o Objections must be made out of jury’s presence
 Verdicts
o General verdicts (civil)
o Special verdicts (civil)
I. Basics & Procedure
 FRE 102: Purpose. The FRE “should be construed so as to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining
the truth and securing a just determination”
 FRE 103: Rulings on Evidence [(a) Preserving Claim of Error; (b) Not Needing to Renew an Objection or Offer
of Proof; (c) Court’s Statement About the Ruling; Directing an Offer of Proof; (d) Preventing the Jury from
Hearing Inadmissible Evidence; (e) Taking Notice of Plain Error]
o Proponent of evidence must offer and opponent must resist at the right time, for the right reason, and
in the right way. Rule 103 is a full disclosure rule – meaning that the lawyer bears the responsibility of
telling the judge and the other lawyers why they are offering or objecting to evidence. Also, lawyers
must preserve claim of error under Rule 103.
o Standard of Review:
 If objection is timely on a specific ground:
 (1) Abuse of discretion; (2) substantial rights/harmless error – even if there was error, the
substantial rights of the party must have been violated in order for a reviewing court to
overturn. If error did not affect substantial rights, then it is considered harmless
 Two-part test: (1) whether it was wrong; (2) whether it affected the trial.
o Most appellants don’t get to (2) b/c abuse of discretion standard makes it difficult to
prove error given the wide discretion given in most evidentiary rulings
 If NO timely objection:
 Plain error (loss of rights for appellant) – this standard allows for substantial judicial
discretion and is extremely deferential. Was error “particularly egregious” or a “miscarriage
of justice?”
 On Constitutional issues:
 Harmless beyond a reasonable doubt
 FRE 104: (a) “The court must decide any preliminary questions about whether a witness is qualified, a
privilege exists, OR evidence is admissible. In so deciding, the court is NOT bound by evidence rules, EXCEPT
those on privilege.”
o Draws line b/t jury and judge; screens evidence for reliability
o Judge: admits/doesn’t admit
o Jury: weighs
o Purpose: ensure the jury receives relevant and reliable evidence that doesn’t run counter to some
established public or legal policy
o Subsection (a) is subject to conditional relevancy in (b) and confessions in (c)
 FRE 105: “If the court admits evidence that is admissible against a party or for a purpose—but not against
another party or for another purpose—the court, on timely request, must restrict the evidence to its proper
scope and instruct the jury accordingly”  LIMITING INSTRUCTION
o Close relationship exists b/t this rule and Rule 403, which provides for exclusion when “probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury.” The availability and effectiveness of a Rule 105 limiting instruction must be taken into
consideration when deciding to exclude for unfair prejudice under Rule 403
 See especially the Bruton Rule – a limiting instruction is NOT effective in codefendant confessions
that implicate the defendant [check this]


 FRE 401: Evidence is relevant if it has any tendency to make the existence of any fact that is of
consequence more or less probable than it would be without the evidence
o Weakness Okay - Evidence is relevant if it increases probability at all but it does NOT have to be
conclusive or strong to be relevant
 “'a brick is not a wall' but it can help build a wall” – if an item of evidence (A) is offered as
tending to prove fact X, the fact that X is still less likely to be true than not true after proof
of A does not block A from being relevant, as long as X is more likely to be true with A than
without A.
o Pertinent - Must be pertinent to what lawyer is trying to prove / must be material to what is
being proved in the case (doesn’t have to be in dispute)
o Direct Evidence: evidence which, if believed, resolves a matter at issue
 When the evidence is direct, so long as it is offered to help establish a material issue, it can
never be irrelevant
o Circumstantial Evidence: evidence which, even if believed, does not resolve the matter at issue
unless additional reasoning is used to reach the proposition to which the evidence is directed.
 Circumstantial evidence, even if offered to prove a material fact, will nonetheless be found
to be irrelevant if the evidence has no probative value (ie it does not affect the probability
of the proposition to which it was directed)
o Questions to determine relevancy:
 What is it offered to prove?
- (any tendency) The evidence does not have to conclusively prove any fact on its own in
order to be admitted
 Does it help establish a fact, or make it more or less probable?
- (more or less probable) The evidence can simply bring confidence or doubt to other
evidence offered (i.e. impeachment)
 Is it of consequence to the case?
- (consequence) typically determined by the cause of action
o Example: When punitive damages are sought, it might be important to consider the wealth of
the D - the fact is not of consequence in the action, but may be relevant in other means.
o Example: After someone was charged with felony in possession, will be important for
government to call witnesses to prove the elements; and those three elements (prior conviction,
interstate commerce, are what will be relevant and if trying to get in evidence beyond the
elements, might be excluded
 FRE 402: Relevant evidence is generally admissible unless another rule prohibits it / evidence that is
not relevant is not admissible
 CEC 210: Relevant evidence = evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.
o Under FRE - can be disputed or undisputed
o Under CA rule - relevancy test hinges on whether the fact is in dispute
o Under FRE - evidence must be of consequence, it does not have to be disputed
o Example: (bank floor plan) - The bank floor plan in a bank robbery is not admissible under CEC -
b/c it is not disputed, but under FRE it could be of consequence to explain the robbery.
o Example: (car accident) – D wants to admit negligence. Under CEC, liability is not disputed, so
exclude evidence of negligence & only assess damages. Under FRE, the negligence might be of
consequence to help prove the accident was more probable than not.
 FRE 401 does not distinguish between materiality and relevant, and instead combines them into one rule.
 Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an
item of evidence and a matter properly provable in the case. The mere fact that an issue is not in
controversy/dispute (and a party is willing to stipulate to it) does not mean, under the low standard of FRE
401, that the evidence is irrelevant; however, sometimes a fact will simply not be relevant. While situations
will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the
ruling should be made of the basis of considerations under FRE 403, rather than under any general
requirement that evidence is admissible only if directed to matters in dispute. Evidence which is essentially
background in nature can scarcely be said to involve disputed matter, yet it is universally offered and
admitted as an aid to understanding.
 Evidence can have probative value even though, following the receipt of the evidence, the proposition for
which it is offered still seems quite improbable – all that is required is that the evidence make the disputed
fact more probable than it would be without the evidence. FRE 401. Typically circumstantial evidence
proffered has at least some sort of probative value than at least slightly increases the probability of the
existence of the fact to which it is directed; therefore, evidence should rarely be excluded for lack of probative
value. Instead, evidence is very frequently excluded because its probative value is outweighed by a danger
under FRE 403.
Case: Knapp v. State (1907) (relevant evidence makes any fact of consequence more or less
o Facts: Knapp (D) claims he murdered sheriff in self-defense because he heard the victim beat an
old man to death so he had reason to fear for his safety. D could not remember who/how he
heard the story. State needed to prove that it was not self-defense, so State attempted to
introduce evidence that the old man died of senility.
o RULE: Evidence is relevant when it tends to prove or disprove an issue at trial
o Analysis: The evidence that the beating did not happen (old man was senile and alcoholic) is
relevant to the Ds self-defense claim and the question whether the defendant actually heard
what he claimed to hear. If there was not a beating, it decreases the chance that D heard a
rumor about the beating. D did not identify the informant, so the testimony had a tendency to
make Ds claim of what he heard less likely to be true than it would be without the doctor’s
 Because D is arguing self defense, the intent is the issue in this case. Credibility and veracity
of witnesses that take the stand are always important in the case, so attacking the
credibility is always relevant
 Case: Sherrod v Barry
o Facts: Police officer shot suspect when he thought the victim made a sudden movement
towards his gun. Evidence that he was actually unarmed was admitted.
o Holding evidence about whether suspect was armed (info police didn’t have at the time) was
improper, irrelevant, and prejudicial to the determination of whether officer acted reasonably
‘under the circumstance’.
 Because officer reasonably thought suspect had a gun, evidence that later proved he didn’t
was not relevant to determining if officer acted appropriately or not
 But see Knapp: opposite of Knapp where the underlying fact was relevant to determining if
the belief was reasonable
o Counter Arg: It is relevant that the victim was unarmed because it diminishes the probability
that he was making a quick movement for a weapon.
 FRE 403: Relevant evidence can be excluded if its probative value is substantially outweighed by
danger of unfair prejudice, creates confusion or it is a waste of time
 The scope of FRE 403 is much broader than the other rules and may be applied to any piece of
 Balancing Test - Questions to determine if the evidence should be excluded:
o What is the probative value for proper purpose of the evidence?
o Is there a danger evidence will be used for a forbidden purpose?
o Is there an alternative way the party can include the information and accomplish the same
o Does it carry prejudice that outweighs probative value?
 The word substantially is significant, because it makes 403 balancing in favor of admissibility - if
probative and prejudicial evidence is balanced, it is admissible. It is insufficient for the court to find
that one of the enumerated dangers simply exists or somehow outweighs the probative value of
evidence. Thus, the greater the probative value of the evidence the more difficult it will be to
exclude the evidence. The converse is also true, if the probative value of the evidence is slight, the
degree of danger necessary to satisfy the FRE 403 standard can be less.
o If the probative value and “dangers” are equal, the trial judge should admit the evidence
o If the “dangers” somewhat outweigh the probative value, the trial judge should admit the
o If the probative value is slight but the “dangers” are also slight, the judge should admit the
o If the probative value is great and the “dangers” are also great, the trial judge should admit the
o Only if the “dangers” substantially outweigh the probative value should the trial judge exclude
the evidence
 In conducting the FRE 403 balance, the district court will also weigh the effect of giving the jury a
limiting instruction under FRE 105 to restrict the evidence to its permissible use and warn about the
impropriety of using the evidence for a prohibited purpose
o Motions in limine: any party may make a motion in limine, which requests the court to make an
evidentiary ruling before trial. Although sometimes the rulings are preliminary and may be
revisited by the judge at trial, parties will often structure trial strategy based on the courts
o Limiting instructions: FRE 105 – if an out of court statement is admissible for one purpose but
not for the other, under 105, the objecting party is entitled to a limiting instruction telling the
jury the proper purpose and the forbidden purpose. If the danger that the jury will misuse the
statement substantially outweighs the probative value of the statement when used for its
limited purpose, the trial judge may exclude the statement altogether under 403
 When a court is weighing an items probative value against its prejudicial effect, the court should
normally compare the proffered item against other possible evidence on the same point. If the
alternative evidence has the same or nearly the same probative effect, and much less prejudicial
value, the court should normally insist that the less-prejudicial item be used
o Gruesome photos – courts often exclude material on account of its prejudicial effect
 Photos of corpses – question is always are the photos more inflammatory than needed to
show how the killing occurred?
- Autopsy photographs – where the photos show not the body in the condition it was in
immediately after the Vs death but rather “wounds” that are really the result of the
autopsy itself – likely to exclude the photos
If the photos are large, and or if they are I color, exclusion for prejudice is also more
- Allowed to show necessary detail in order to convey to the jury the details of how the D
brought about the victim’s death (fact that the photos are gruesome, colored, or greatly
enlarged will not usually lead to exclusion)
 Photos of accident victim—problem also arises when photos are introduced by plaintiff in a
tor suit to show injuries at the time. Courts generally allow the photos-however gruesome-
so long as they are not distorted, since the precise nature of the injuries is highly relevant
on the subject of damages (in contrast to the murder situation, where the nature of the
injuries leading to death is not literally an element of the case)
o Evidence of other crimes
 Convicted of past crimes – common for evidence to be excluded because of unfair prejudice
when evidence is that the D in a criminal case has in the past been convicted of crimes
similar to the one he is now charged with. Typically considered unfairly prejudicial because
it may lad a juror to think that since the D already has a criminal record, an erroneous
conviction would not be quite as serious as would otherwise be the case, and a juror
influenced by the past conviction may be satisfied with a slightly less compelling
demonstration of guilt than he should be. (Old Chief) What are the purposes of the past
conviction evidence: simply satisfying a jurisdictional element, introduce prior judgment,
with previous offense named, nature of the previous offense included?
- Probative value should be determined by comparing the evidentiary alternatives to
the item
- Special rule- FRE have a special provision barring such evidence in most instances
 Other evidence of guilt- even where a prior conviction is not shown, evidence suggesting
that the D is in fact guilty of past crimes may similarly be excluded on the grounds of unfair
prejudice (State v. Ball where government offered evidence in robbery prosecution that
several hundred dollars was found on D more than two weeks after robbery when he was
unlikely to have come by it honestly-evidence was excluded as unfairly prejudicial bc the
jury may have inferred D was guilty of a different robbery)
 relevant evidence may be excluded if its probative value is outweighed by its tendency to confuse or
mislead the jury, or unduly distract from the main issues.
 evidence may also be excluded if it would be a waste of time. This is especially likely to be the case
where the evidence is cumulative. Can exclude cumulative evidence that is a waste of time because
too much other evidence of the same nature has already been received
 No “unfair” surprise: FRE 403 does not recognize “unfair” surprise as a ground for excluding otherwise relevant
evidence. IF the proposed evidence takes the other side by surprise, the appropriate remedy is a continuance.
(Note to FRE 403)
 Standard for appellate review: the exclusion of relevant evidence because its probative value is outweighed by
a danger requires the court to perform a difficult balancing task. Appellate courts have generally given trial
courts wide discretion in conducting this balancing—only where there is a clear abuse of discretion will the trial
courts decision be overturned on appeal
 CEC 352: Exclude evidence if the probative value is substantially outweighed by consumption of
time, danger of prejudice, confusing issues, misleading the jury
 Case: Old Chief v. US (1997) (syllogism is not a story)
o Old Chief requested the government refrain from introducing information about his prior felony,
except to state he had been convicted of a prior felony. The prosecutor refused the stipulation
and insisted on his right to prove the case in his own way.
o RULE: When status is element of a crime, it is prejudicial to present evidence about the status if
D agrees to stipulate.
o The nature of D’s prior crime was too prejudicial & could cause the jury to convict the D for his
prior offense due to “bad character”. Here the risk of unfair prejudice outweighed the probative
value of the record of conviction. Prosecution is usually allowed to use evidence to convey the
moral gravity of a crime, but here the P didn’t lose the “colorful narrative”/ disappoint jury
expectations/interrupt the narrative by excluding the prejudicial evidence of the prior crime.
 Factual Stipulation Disfavored - Normally do not stipulate around facts, and the prosecution has the
right to tell its case the way it wants - you don’t want to deprive the court/jury of evidence that is
fair and has legitimate weight. When evidence is admitted to show intent, motive, plan, etc, the
underlying facts of the prior act may indeed increase the relevance and the prosecutor may not be
required to accept the stipulation. Also facts might be more relevant to witness credibility etc.
o Disappointing Expectations - if jury expects evidence and don’t get it, then they would hold that
against the prosecution
o Case: Parr case (cited in Old Chief) – [shows that Prosecution gets to present their case the way
they want to]
 Prosecutor wanted to show a pornographic movie. D offered to stipulate that the movie
was pornographic.
 If trying to prove possession, the movie could show a person, paraphernalia or address
linking it to the D, OR could be prejudicial because the jury might be so offended that they
label D guilty by association. Here, the movie is part of the story relevant to the case, in
contrast to Old Chief where the prior crime is not part of the current story, and rather
reflects on his character. So the jury might hold it against the prosecution if they do not
show movie, and don’t want to disappoint the jury expectations by not showing them
evidence they want to see
 Weighing Credibility of Evidence
o Case: Ballou v. Henri Studios (1981) (judge has to accept evidence as credible to do 403
balancing test)
 Facts: Ballou (P) tried to suppress evidence of the deceased’s blood alcohol test taken after
his death, showing he was intoxicated, and presented evidence that a nurse stated he was
not drunk. Judge excluded the evidence because he thought the blood test was unreliable.
 RULE: In weighing probative against prejudicial value, the court cannot determine the
credibility of the evidence.
- Rule 403 does not permit exclusion of evidence because the judge does not find it
credible. Weighing probative value against unfair prejudice under 403 means probative
value with respect to a material fact if the evidence is believed, not the degree the court
finds it believable.
- The court should determine the probative value of the evidence if true, and weigh that
probative value against the danger of unfair prejudice, leaving to the jury the difficult
choice of whether to credit the evidence.
- Prejudice must be “unfair”- and under 403, unfair prejudice means an undue tendency
to suggest a decision on an improper basis, commonly, though not necessarily, an
emotional one
 Rationale: Under FRE 403 the court can balance the probative and prejudicial value. When
a piece of evidence is admitted it is up to the jury to determine its credibility and reliability.
Because the court found the tests lacked reliability, it did not give it any probative value.
 HYPO – (Wrongful Death Action):
o Family grieves over the death of the father/husband. They are entitled to recover the financial
value of comfort & support they would have received but can’t recover for grief. There is a
video of the grieving family at the death bed and they want to admit it to show the relationship
between the family, showing the value of comfort & support.
o This will likely be excluded as it is prejudicial because the jury may feel sympathy and
compensate for grief against the jury instructions. The proper purpose is to show the close
relationship, the forbidden purpose is to award damages for grief. The alternative ways to
show comfort and support may such as financial records, testimonies of family or other videos
not displaying grieving at the deathbed.
 HYPO #1 (Admit Liability of Wrongful Death + Intoxication Evidence) pg 100:
o P sues D for the wrongful death of H, her husband who was struck and killed by D’s car. D’s
answer admits liability.
 HYPO #2 (Murder case) pg 100:
o Prosecution wants to include gruesome post autopsy photos of the victim
o Likely NOT admissible due to prejudicial value, but pre-autopsy photos are generally admissible.
Photos could have a proper purpose to expose the cause of death, corroborate witnesses, intent
OR they could be prejudicial because it may not be an accurate description of the cause of
death, as wounds may be created by the autopsy, emotion, insanity defense. Alternatives are
expert testimony by the medical examiner, diagrams, or B&W photos.
 HYPO- (Robbery case):
o Prosecution wants to admit evidence that the suspect is a drug addict. D objects saying it is
harmful to the D’s character.
o Analysis: The proper purpose could be relevant to show D’s motive to buy drugs. The forbidden
purpose is to punish D for a drug addiction, not for the robbery (jury may not be sure if he is
guilty of robbery beyond a reasonable doubt, but he is a worthless drug addict so should punish
him). There could be a question of how financially consuming the addiction is to determine if it
is relevant (i.e. heroin v marijuana)
 Case: Holmes v. South Carolina
o Facts: D was charged with murder, sexual assault, burglary, and robbery in connection with an
incident involving the V. In a new trial, D sought to introduce proof that another man was
actually the one who committed the crimes. Trial court excluded the evidence of third party
guilt because it merely implanted a third party and did not exculpate the D.
o Rule: In order to have a “meaningful opportunity to present a complete defense,” the defendant
must be entitled to introduce evidence of a third party’s guilt even if it does not exculpate the D.
o Analysis: D must be able to present evidence not only of his innocence but of the guilt of a third
party. The prosecution’s evidence providing strong support that the defendant is guilty does not
automatically mean that evidence of a third party’s guilt is weak.
 Case: Clark v. State (page 108)
o Facts: A D was charged with rape – the blood used was drawn because the D was a suspect in
another rape – the police officer testimony revealed had been a suspect
o Holding: Defense is entitled to cure damage from a witness by putting otherwise inadmissible
evidence. Evidence may should be admitted under the doctrine of “curative admissibility”, and
defense should have been able to get witness to reveal the DNA test had exonerated the D in
the other case.
 Character Definition: Generalized description of one's disposition with respect to a general trait
such as honesty, temperance, or peacefulness.
o FRE 401(a)(1) Evidence of a person’s character trait or predisposition is generally not admissible
to show that she acted according to her character on a particular occasion.
 “propensity evidence” Circumstantial use of character: using evidence to force an inference;
this is generally prohibited in both criminal and civil cases by 404(a)(1)
 Habit Definition: more specific, it denotes one’s regular response to a repeated situation.
 Why is Character Evidence Excluded?
o (1) Inferential error prejudice - Use of past conviction to affect the current conviction, gives
character trait too much weight in predicting what a person might do
 (ex. once a thief always a thief)
o (2) Nullification prejudice - Jury may disregard the law after hearing character evidence
 (Ex: may convict on the present crime to punish for past crime)
o (3) Cost and consumption of time - Avoid litigating on collateral issues / would be wasteful to go
through all the events of a person’s life to decide their character
 FRE 404: Character Evidence is Generally NOT Admissible to Prove Conduct.
o FRE 404(a): Evidence of a person's character or a trait of character is NOT admissible to prove
action in conformity therewith on a particular occasion
 The inquiry is not rejected because the character is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so over persuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend against a particular charge. The
overriding policy of excluding such evidence, despite its admitted probative value, is the
practical experience that its disallowance tends to prevent confusion of issues, unfair
surprise, and undue prejudice.
 (Ex. he lied in the past, he is a liar, so he embezzled these funds; or cannot show that prior
criminal history existed, so he committed the crime; or that the person had a gun)
 this is a policy issue, not necessarily that the evidence is no relevant
 Exceptions -> FRE 404(a)(1)-(3).
o Rare in Civil - Character evidence is rarely allowed in civil cases; criminal D can offer character
evidence to prove they didn’t commit the crime and if it is relevant [allow D to “open the door”
and once the door is open, cannot be closed]
o Five Categories of exceptions to general rule on propensity evidence:
 (1) Character of the accused in a criminal case, FRE 404(a)(2)(A);
 (2) Character of the victim in a criminal case, FRE 404(a)(2)(B);
 (3) Character of the accused for sexual misconduct in a case charging a sex crime, FRE 413-
 (4) Impeachment of a witness for truthfulness, in both civil and criminal cases, FRE 608
 (5) Impeachment of a witness by evidence of the witness’s criminal conviction, in both civil
and criminal cases, FRE 609
o Accused Character:
 FRE 404(a)(2)(A): (“Mercy rule”): in a criminal case, the D CAN offer evidence of a their own
pertinent character trait, and if the evidence is admitted, the prosecutor can offer evidence
to rebut it.
- No Specific Acts - Only opinion/reputation evidence regarding the same trait
 Sex Offense Cases - Prosecution can offer evidence of accused character under 413 (sex
offenses), 414 (child molestation), 415 (civil cases)
o Character of Alleged Victim:
 FRE 404(a)(2)(B): in criminal cases, a defendant can offer evidence of an alleged victims
pertinent trait and if the evidence is admitted, the prosecutor can (1) offer evidence to
rebut it (2) and offer evidence of the defendant same trait
Ex. Accused can offer evidence of victims violent character (through reputation or
opinion); prosecutor can then offer evidence of peacefulness to rebut that the victim
was the first aggressor
- Applicable only when self-defense is raised - limited to criminal cases
- Limited to reputation/opinion not specific acts
o Character of a Witness (Ex. for impeachment of credibility):
 FRE 404(a)(3): Evidence of witness character admissible under FRE 607-609
o Character as the Ultimate Issue:
 FRE 405(b): when character is an essential element of a charge or defense, proof can be
given via reputation/opinion testimony or specific instances of conduct
 Can use character trait if that is the ultimate issue in the case and not evidence of
something else, can put in specific instances or reputation/opinion testimony
 Example: Character trait of being unfit parent - If the state is trying to take away
parental rights of D, they must prove they are an unfit parent and thus it is the ultimate
 Example: Libel cases where damage to reputation is at issue
Evidence About Who Can Introduce Reputation / Opinion Specific Acts

Defendant’s traits
inconsistent with the Defendant — 404(a)(1) Yes No
charged offense

Defendant’s trait consistent Prosecution to rebut

with the charged offense defendant’s character Yes No
evidence — 404(a)(1)

Defendant’s traits in a SEX- Everyone (plaintiff,

RELATED OFFENSE prosecutor, or defendant) — Yes YES
413, 414, 415

Traits of the victim Defendant — 404(a)(2) Yes No

Prosecutor (to rebut
defendant’s claims about
victim’s character) OR to Yes No
Traits of the victim rebut claims that victim was
first aggressor in murder
case — 404(a)(2)(C)
YES — only the two
SEX OFFENSE CASES — traits Prosecutor (very, very rarely NO exception in 412(b)(1)(A) &
of the victim the defendant) — 412 (B)


o Reputation or Opinion Testimony:
 Foundational Requirement - offering party must lay foundation to show witness’s
qualifications to testify about a person’s reputation, and it is the knowledge of the
accused/victims reputation at the time of the charged offense that is relevant
 FRE 405(a) Reputation/Opinion testimony - character evidence must take form of
reputation or opinion, NOT of Specific Acts. However, on cross examination inquiry into
relevant specific instances of conduct IS allowed.
- Example: Teddy Roosevelt testimony
 Case: Michelson v. US (1948) - (CAN use specific acts to challenge witness testimony on
cross examination)
- Facts: Michelson charged with bribery of an IRS agent. He called witnesses to testify
about his good character for truth and honesty. Court allowed prosecution to ask the
witnesses if they had heard about his 27 year old arrest for receiving stolen property.
- RULE: P has a right to test basis for the character witnesses’ testimony. A character
witness, if unaware of D’s prior arrests, may not have a good understanding of D’s
reputation or may have poor reputation standards.
- Reasoning: A D may introduce evidence of his good character from which jury can infer
he is not likely to commit the offense, but once D opens the door & introduces
reputation evidence, the prosecution can challenge the evidence through cross
examination or calling its own character witnesses. Trial judge has the discretion to
limit the evidence to guard against unfair prejudice. Prosecution can cross-examine to
show the witness is not familiar with the D’s reputation.
- Rationale: Impeach witness if they are not qualified to comment.
o Specific acts ARE Allowed - IF Character is an Essential Element of the Crime.
 FRE 405(b) - when character is an essential element of a charge or defense, proof can be
given with specific instances of conduct
 OR specific acts may be raised on cross examination
o FRE 404(b): Evidence of a crime or other act MAY be admissible to show something other than
 KIPPOMIA - Knowledge, Intent, Preparation, Plan, Opportunity, Motive, Identity (or modus
operandi), Absence of mistake (lack of accident).
- (NOT an exhaustive list!)
o For this evidence to be admitted:
 (1) Proponent must show proper purpose;
 (2) must be sufficient proof it occurred [104(a) or (b)]; and
 (3) must survive 403 - or can be subject to limiting instruction.
o KNOWLEDGE - Case: Cleghorn v. NY Central (1874) (N.Y. C of A 1874)
 Drunk switchmen causes train accident. T.C. admitted evidence of D’s prior negligence &
intemperate behavior to prove his negligence in the accident causing Cleghorn's injury.
Company had knowledge of his drunk character when they hired him.
 RULE: CANNOT use character evidence of being a drunk to show he was drunk on the
particular day, but CAN use it to show the company knew about his drunken habits.
 In general, evidence of prior negligence may not be used to prove negligence on a certain
occasion, thus intemperance cannot be used to show he was drunk at the time of the
accident. But if the company that employed him knew of his intemperate habits, they were
negligent in not firing him and then would be using evidence of character to show a state of
mind of the company. Cannot show he had a habit of drinking to show he was drunk during
the accident.
o IDENTITY: Evidence of prior crimes IS admissible to show identity - if the modus operandi in
both crimes is so similar & unusual to indicate the same person committed both crimes - (Must
be signature crime)
 Case: US v. Carrillo (1993) (Must be distinctive to prove identity)
- Carillo (D) convicted of distribution of drugs. He challenged the court’s decision to
admit evidence of other drug deals in balloon packaging to show his identity.
- RULE: Evidence of prior crimes, used to prove the identity of an accused must have
such a high degree of similarity to the present offense as to make it the handiwork of
the accused.
- Reasoning: When modus operandi is used to establish identity, the prosecution must
show the crime in question is so similar to D’s other crimes that it is unique to the D.
The method referenced is not sufficiently unique to identify D because it is a common
method of packaging drugs.
- Important: *This case substantiates McCormick’s point that evidence of his identity
does make it more likely that he sold to this agent but this factor is not enough to admit
the evidence because it has to more than character that identifies him*
o 5) CANNOT show Propensity or Pattern - CAN Admit the evidence IF it Shows Intent/Motive.
 Case: United States v. Beasley (Cannot use drug crimes to show propensity)
- Facts: Beasley (D) was convicted for distribution of illegal drugs and challenges the
court’s decision to admit into evidence D’s other drug related crimes.
- RULE: Evidence of a pattern of similar crimes is NOT admissible to prove that on a
particular occasion, an accused has acted in conformity with his past crimes. Also, a
judge must evaluate whether the evidence is sufficiently probative to outweigh any
danger of prejudice
- Analysis: Trial Court admitted evidence on the ground that prior crimes established a
pattern because they were close in time to the present crime. 404(b) does not allow
use of specific acts to show propensity, thus the pattern cannot be used to prove
Beasley obtained and distributed drugs. The evidence may be used to show intent, to
show he did not obtain the drugs for his experiment, but this has a prejudicial effect on
the jury in that they may punish him for his prior offenses. Cannot always use other
drug offense to prove a current drug crime, it must be more particularized.
 Case: US v. Cunningham (1996) (Evidence of prior bad acts CAN show motive)
- Facts: Nurse is accused of stealing demoral, & sought to exclude evidence of her prior
demoral addiction & prior thefts. P said it showed motive. D said it just showed her
propensity to commit the crime.
- RULE: Evidence of prior bad acts MAY be admissible, even if it tends to show
propensity - IF it also is relevant to show the D’s motive.
- Analysis: Evidence that D stole demoral in the past cannot be introduced to show that
she is likely to steal it in the present, but her prior conduct may be used to show motive
to tamper with the syringes.
 Propensity and Motive do NOT Always Overlap.
- DO NOT overlap - when past drug convictions are used to show D in robbery case is
addict and addiction is offered for motive in robbery
- DO overlap - when the crime is motivated by a taste for engaging in that crime, such as
drug addiction, sex crimes, or firebug- thus evidence of any unusual desire that would
cause one to commit the crime in question can show motive.
- Important: The greater the overlap between propensity & motive - the more careful
the judge should be in admitting evidence for motive as the jury may infer propensity.
 Sufficiency of Evidence for Other Bad Acts:
- Case: Tucker v. State (1966)
 Facts: In 1957, Tucker (D) called police to his home, he was drinking and pointed
police to dead body in his living room. In 1962, same thing happens. D challenged
trial courts admission of first murder for which D was not convicted, as proof of a
common scheme and plan.
 Holding: NV Rule- insufficient evidence that D committed the murder fails the NV
clear and convincing standard.
 Professor Park - Says likely a different result under FRE
o FRE 406: Evidence of a person’s habit or routine practice MAY be admitted to prove that on a
particular occasion, the person acted in accordance with that habit.
 Testimony concerning prior specific instances of habit is allowed (does not have to be
reputation or opinion)
 "Habit" (regular response to repeated situation) vs “Character” (general disposition)
 Law distinguishes situations where the defendant has a specific habit that is predictable and
thus provides better evidence than character traits
 The thing the individual has a habit of doing must be at issue.
o To get in habit evidence - (1) must distinguish it from character evidence (2) sufficient proof (3)
threshold question for the judge - can this be considered a habit?
 Case: Halloran v. Virginia Chemicals (1977) - (If practice is deliberate & repetitive - It CAN
be habit)
- Facts: Halloran (P) mechanic of 15 years injured himself. D tried to show it was P’s
negligence in his practice of heating the refrigerant that caused the injury.
- RULE: When the issue involves proof of a deliberate and repetitive practice, which is
negligent, a party can introduce evidence of habit or regular usage to show negligence
on a certain occasion.
- Analysis: Habit is admissible to prove conformity with that habit on a certain occasion.
Here, P’s action was deliberate & repetitive so far less likely to vary under the certain
circumstances. P had serviced 100s of air conditioning units which implied he followed
a specific routine. Before admission of the evidence, the judge must determine if the
conduct in question is sufficiently repeated to constitute a regular usage or habit.
 Case: Perrin v. Anderson (1986) - (Prior acts of violence CAN show a habit)
- Facts: Perrin (P) was shot and killed by Police Officer (D) when he tried to obtain
information from Perrin about a car accident. D allowed to bring in evidence of Perrin's
past acts of aggression with police officers.
- RULE: Evidence of specific acts of conduct may NOT be used as circumstantial evidence
of D’s character, BUT habit evidence MAY be used to prove an individual’s conduct on
particular occasions was in conformity with a habit.
- Analysis: Evidence of a violent disposition is character evidence & only opinion &
reputation testimony are acceptable forms of proof, but the evidence of previous
violent encounters could be admitted as habit to show the conduct was in conformity
with the habit in question. The court allowed the evidence under the habit exception.
 Other Ways the Defense could have admitted evidence of these instances
- 404(a)(2) - If it were a criminal case - opinion (only) of victim's violent character to
show he was the first aggressor to rebut evidence by the prosecutor
- 405(b) - If character were an essential element, could admit specific instances such as
o Judge - decides admissibility of evidence; is the law giver.
o Jury - decides its weight and credibility; is the fact finder
o FRE 104(a): Judge decides preliminary questions concerning admissibility of evidence
 Judge decides if preliminary fact is true b/c the jury might be prejudiced
Judge is NOT Bound by rules of evidence in making determination
Examples of FRE 104(a) Questions: (NOTE: these are conditional relevancy questions)
- Were Miranda warnings given?
- Did D consent to the search? (if D says no & cops say yes, judge decides who to believe)
- “Excited Utterance”- was declarant excited?
- Attorney-Client privilege – was there a sign under jailhouse phone saying “calls are
o FRE 104(b) - Once the foundation has been laid, the jury may decide the issue of fact - when the
“relevancy depends on the fulfillment of a condition of fact” – b/c the jury will not hold the
evidence against the D if they disbelieve the fact.
 Examples of 104(b) Questions:
- Was the speeding car the D’s car?
- Is D’s signature on the contract?
- Did threatening phone call/email come from the D?
 Standard of Proof - DO NOT need a preponderance, judge only needs to believe evidence is
sufficient for a reasonable jury to be convinced (Huddleston v. US (1988))
 FRE 104(a) vs. FRE 104(b):
o If the jury will be prejudice in determining the admissibility of evidence of the truth of the
conditional fact, either it should be a question for the judge or the judge can issue a limiting
 Case: Huddleston v. US (1988)
o Facts: Huddleston (D) was charged with sale of stolen videocassettes and claims he didn’t know
they were stolen. D challenged the trial court’s decision admitting evidence of other similar acts
for which he was not convicted.
o Rule: Evidence of D’s similar criminal acts may be admitted if there’s “evidence sufficient to
support a finding by a jury” that D committed the similar act.
o Analysis: Admissibility of prior acts CAN be resolved under 104(b). There was evidence to
support finding that D had knowledge the tapes were stolen. The question of if he was guilty
depends on showing enough evidence for a rational jury to decide.
o Note: CEC 403(a)(4) – the Conditional Relevance procedure is applied when the proffered
evidence is of conduct of a particular person and the preliminary fact is whether that person so
conducted himself. - Analogous to FRE 104(b).
 FRE 412(a): Evidence about the victim’s sexual history is generally NOT Admissible - CANNOT offer
evidence to show: (1) the victim engaged in other sexual behavior or (2) to prove the victim's
sexual predisposition
o Policy - Protect victim’s reputation, avoid jury prejudice about victims sexual activity, encourage
victims to report crimes (started in 70’s to limit evidence of prior conduct).
o Exceptions:
 412(b)(1) - In Criminal Cases:
- (A) Evidence of specific instances CAN be used to show that another person was the
source of physical evidence (semen, injury, or other physical evidence).
- (B) Evidence of specific instances of sexual behavior between accused & victim
- (C) If exclusion would violate constitutional rights.
 412(b)(2) - In Civil Cases: Creates balancing test under which probative value is weighed
against prejudicial harm.
- Admissible - IF the probative value substantially outweighs danger.
- What about when probative value and prejudice are evenly balanced?
 Under 412 - if evenly balanced  It is Excluded
 Under 403 - if evenly balanced  It is Admitted
 Case: State v. Cassidy (1985) (can't use evidence of victims prior history to show pattern of
o Facts: V alleged that D forced her to engage in sexual behavior then threw her out of the
apartment. D claims it was consensual & then victim became hysterical & tried to introduce
evidence that the victim had engaged in similar acts with another man.
o RULE: Evidence of rape victims prior sexual conduct may NOT be admissible to show a victims
pattern of sexual conduct.
o Rationale: D said excluding evidence of her prior conduct would violate his constitutional rights.
Here, unless the victims had raised a rape claim after her conduct with the other man, the fact
that she was previously hysterical does not prove she did the same thing this time
o Holding: not a pattern - the fact that about one year before the alleged assault occurred, the
victim began a sexual episode with another man, became upset and changed her mind bc of her
feelings about her dead husband dos NOT tend to establish that, on this night, the V became
hysterical about her husband, screamed that she wanted to die and be with her dead husband,
and struck the ∆
 Court weighed: one year ago, one time is not a pattern, does it violate constitutional rights
of the ∆
 Would have allowed it in if there were prior situations where she made false claims about
an individual (most courts will allow prior false allegations bc it is not actually prior sexual
 Case: Olden v. Kentucky (1988) (evidence of V’s relationships admissible to show motive to lie)
o Facts: Olden (D) convicted of kidnapping and rape of Matthews and she gave inconsistent
testimony on the stand. Olden tried to elicit information from the victim about her extra marital
relations to show that she fabricated the rape story to protect her relationship with Russell. Trial
court limited this information because Russell was black, so this would prejudice the jury.
o RULE: Evidence of rape victim’s sexual relationships MAY be admitted to impeach the credibility
of the victim (show motive to lie, not TOMA).
o Rationale: D had constitutional right to cross examine witness & introduce evidence of V’s
relationship with another person to show a motive for false accusation & impeach her
 Distinguishable - Narrow interpretation (V’s lover testified on D’s behalf & V made a false
claim of living with her mom.)
 Case: US v. Platero (1995) (jury is to decide when relevancy of evidence depends on
condition of fact to see if CC rights violated)
o Platero (D) charged with sexually assaulting the victim when he pulled over her car, while she
was driving with Laughin. Platero asserted that the victim fabricated the story to protect her
relationship with Laughin. The judge determined that no sexual relationship existed between
the victim and Laughin at the time of the assault so Platero was denied the opportunity to cross
o RULE: The JURY (not the judge) must determine whether a prior sexual relationship exists under
FRE 412.
o Rationale: Judge’s determination violated D’s right to confront - evidence’s relevancy depended
on condition of a fact, so a jury should have determined whether the fact was true.
o FRE 413: In criminal case, the court may admit evidence that the D committed any other sexual
assault. (No need for similarly between the past & present act).
 Relates to character of perpetrator
 The prior crime need not have resulted in a conviction (ex. can be accusation of rape)
o FRE 414: In a criminal case, where the D is accused of child molestation, the court MAY admit
evidence that the D committed other acts of child molestation.
 Child must be under the age of 14 at the time of offense
o Criticisms:
 Inconsistent with Rape Shield Rule (FRE 412):
- 412 has other policy reasons to encourage victims to report crimes
- Defendant's sexual crimes are more probative than prior sex acts of the victim
 Inconsistent with Prohibition Against Character Evidence
- There is danger the jury will overvalue evidence and apply a lower standard of proof
because they will not be worried about convicting an innocent man if he committed
prior bad acts.
o FRE 415: In civil cases of sexual assault or molestation, evidence of other offenses of assault are
o Case: Johnson v. Elk Lake School District (2002) (403 still applies to keep out evidence of little
 Facts: Johnson (P) alleged (D), her high school guidance counselor sexually assaulted and
abused her. P tried to introduce evidence that D had sexually assaulted another teacher
when he picked her up - this was isolated incident that was never reported.
 RULE: Admission of prior sexual assault under FRE 415 must be balanced with the trial
courts discretion to exclude under FRE 403 - IF the probative value is questionable.
 Rationale: The past act was NOT substantially similar to the assault allegedly committed by
defendant, it was isolated incident, and there was reason to believe it was unintentional.
The probative value of this evidence is outweighed by its potential for unfair prejudice,
waste of time and confusion.
 CEC 1103(c) - (CA Rape Shield Rule):
o Excludes victims sexual history, and
o Does NOT apply to sexual assaults in prison
o Does NOT preclude evidence offered to attack the credibility of witnesses
o Similar, prior occurrences MAY be relevant to show the party had notice or reasonable
opportunity to know of a dangerous condition OR to prove the existence of the dangerous
o Case: Simon v. Kennebunkport (1980)
 Facts: Simon (P) fell and was injured while walking on a sidewalk.
 RULE: Evidence of similar happenings - if relevant & probative - IS admissible as
circumstantial evidence of a defective condition.
 Rationale: In a negligence action, evidence of similar happenings MAY be relevant to show
defective or dangerous conditions. Judge must determine whether substantial similarity
exists between the conditions of the present accident & other accidents.
- Here the sidewalk has been unchanged and many other people had fallen, showing
substantial similarity. Admission of the evidence does not pose any prejudice.
o FRE 407: Evidence of a subsequent remedial measure that would have made the injury less
likely to occur are NOT admissible to prove negligence, culpable conduct, or defect in the
product or need for warning.
 Rationale/Purpose: To encourage remedial measures & improvements.
- Earlier Measures Okay - Taken before the incident show the D had notice.
 Exceptions:
- Evidence of the feasibility of precautionary measures/alternative design MAY be
admissible – (Subject to the FRE 403 Balancing Test.)
 Broad view - Evidence of anything that is capable of being a precautionary
measure IS admissible.
 Narrow view - Can ONLY admit evidence of precautionary measure that are
physically, economically, or technically feasibly in the circumstances.
- Evidence of subsequent remedial measures MAY be offered for impeachment
 The more adventurous a D is in claiming how safe & great a product is, the more
need there is for impeachment when they change a policy or product.
 Example: "It was the best combination of safety & operation" - so changing the
policy undermines this statement, so there is stronger impeachment power.
 FRE 407 - Only covers measures taken AFTER the accident – measures taken BEFORE are
admissible, while measures taken AFTER are NOT admissible.
o Case: Tuer v. McDonald (1997)
 Facts: A doctor did not restart patient’s heparin (after it was discontinued to prepare for
surgery that was delayed b/c there was an emergency w/ another patient). After the patient
died, the hospital changed their policy for administering heparin.
 RULE: When medical procedure was the standard of care at the time of surgery,
subsequent changes are NOT admissible for impeachment purposes (feasibility &
impeachment exceptions should be read narrowly)
 Feasibility exception should be read narrowly - so that evidence of subsequent remedial
measures is not allowed, unless D says the measure was not possible under the
circumstances. This does not apply when D says the practice was chosen because it was
advisable over the alternate. Here when the doctor said it would be unsafe to restart the
heparin, he thought it would be unsafe compared to the alternative - the alternative was
feasible but not advisable.
 Impeachment exception should be read narrowly if D testified that the prior approach was
safe. The doctors reevaluated the risk after the death and decide the safer course was to
continue to administer heparin.
o HYPO: P buys 2004 SUV model & in 2005 company improves model to risk rollover. In 2006, P is
in a rollover accident. In 2007, company improves model to reduce rollover. 2008 trial, can P
offer evidence of changes to prove negligence?
 Answer: Changes in 2007 are NOT admissible -> b/c they only cover measures taken after
the accident (the ones that are taken before are admissible)
o FRE 408: Evidence of compromises or offers to compromise are:
 NOT admissible to:
- Prove liability for a claim; the validity or invalidity of a claim, or its amount; or to
impeach through prior inconsistent statement.
 Applies to statements made during settlement negotiations
 Only applies IF the claim or amount is disputed
o Admissible to:
 Prove a witness bias or prejudice
 Negate a contention of undue delay
 Prove an effort to obstruct a criminal investigation or prosecution
o Rationales: [2]
 (1) Encourage settlement
 (2) Jury might be confused & prejudiced – the offer doesn’t necessarily show the other side
had a good case
o Case: Davidson v. Prince (1991) (Statement must be made in compromise negotiation to be
 Facts: After car crash, Davidson (P) was attacked by a cow which ran out of D’s truck. D
tried to show P was contributorily negligent and introduced a letter written by Davidson
stating he had cornered the cow.
 RULE: Under FRE 408, evidence of Offers in Compromise may NOT be admissible to prove
liability or invalidity of a claim.
 Rationale: In order to exclude a statement from evidence as an offer in compromise, the
party seeking exclusion must show that the statement was made in compromise
negotiations. The letter indicated that Davidson was informing Prince of the facts of the
accident, not attempting to compromise nor settle negotiations.
o If you are writing letter - Just put at the top, "This is an offer-in-compromise pursuant to FRE
o HYPO – (Car Accident):
 A in accident with B and C sues both of them - C and A settle for $100,000, and at trial C
testifies on behalf of A that it was B’s fault, can B offer evidence of settlement?
- Should be admissible -> to show motive to lie, same idea as if A had paid him money
and released him from liability / to show bias of financial arrangement
o FRE 409: Evidence of offers to pay a hospital or expenses incurred from an injury are NOT
admissible to prove liability for the injury.
o Rationale- statements are made from a human impulse not admission of liability
o Partial Admissions Okay - <<<TODO>>>
 If half admits a fact, that’s admissible.
o FRE 410: Evidence of (1) withdrawn guilty pleas, (2) nolo contendere pleas, (3) statements made
during proceedings regarding guilty pleas or nolo contendere pleas, & (4) statements during plea
bargaining - is NOT admissible in both civil & criminal cases – IF offered against the D.
 NOTE: This only covers statements made to prosecuting attorney, not statements to the
o Coverage of FRE 410
 Withdrawn guilty plea
 Nolo plea
 Statement during plea allocution concerning withdran plea or nolo plea
 Plea discussions with the prosecutor
o Waivable - these rights can be waived.
o FRE 411: Excludes evidence of insurance - IF offered to prove negligence or wrong-doing.
o CAN be offered to for another purposes, such as: agency, ownership or bias.
o Opposing Rationale -
 How is the fact that a party has insurance relevant to negligence?
- If individual know they were fully covered by insurance, maybe they were less careful &
didn’t worry about creating dangerous conditions.
 How could insurance be prejudicial?
- A jury might be more sympathetic to someone who doesn’t have insurance.
 Examples of Trial Objections under Article 4
 Improbable: The proposition sought to be proved “does not follow” from the evidence offered by
the other side FRE 402
 Cumulative: Trial judge has discretion to exclude cumulative evidence that is a waste of time
because too much other evidence of the same nature has already been received [FRE 403, 611(a)]
 Misstates the testimony: in asking a question, an attorney will sometimes incorporate a
misstatement of the witness’s prior testimony. Misstatements of testimony confuse the jury and are
objectionable under FRE 403, 611(a)
 Prejudicial: evidence or argument is prejudicial when it creates a danger of misdecision that
outweighs its potential contribution to accurate fact-finding. Under 403, the trial judge has
discretion to exclude evidence upon making a finding that its probative value is “substantially
outweighed” but the danger of unfair prejudice FRE 403
 Character, improper attack on; + Prior Crimes and other bad acts: this objection, which can be
expressed in various ways, invokes the basic rule against using evidence of character to show action
in conformity therewith. It may also be sued when character evidence is admissible but has been
offered in improper form, as when reputation and opinion testimony is admissible but the
proponent seeks to prove character by the forbidden route of using specific acts of evidence FRE
404-405, 412-415, 608-609
 Specific acts not admissible to show character: objection based on rules that require character to be
shown by reputation or opinion testimony rather than by specific facts FRE 405(a), 608(b)
 Remedial measures evidence inadmissible: objection that the evidence is inadmissible under the
rule forbidding the use of evidence of subsequent remedial measures to show fault or defect FRE
 Offer in compromise + settlement evidence inadmissible: evidence of an offer to settle a case or the
settlement itself is inadmissible to show liability or lack of liability. Under FRE, statements made as
part of settlement negotiations are also inadmissible to show liability or lack of liability. However,
settlement offers and statements are admissible if offered for some other purpose, such as showing
the bias of a witness who received a payment in settlement from one of the parties FRE 408
 Rape Shield Statute: objection that evidence of a sexual assault complainant’s sexual reputation or
sexual history is inadmissible because of rape shield legislation such as FRE 412
o FRE 801(c): “Hearsay” - is a statement, other than one made by the declarant-while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
o “ASSERTION CENTERED DEFINITION” - Statement is hearsay - if it is offered to prove
the truth of the matter asserted. (FRE uses this definition in FRE 801(c))
 Statement CAN be made by person testifying on the stand
 Rationale - exclude evidence because the credibility of the out-of-court declarant
has not been tested by cross examination
- Problems of Credibility: Sincerity, clarity (narrative ability), memory (may
remember poorly), perception (ex. obstructions to the view)
 Hearsay Triangle:
- If pass through the belief of the declarant to reach the conclusion - it IS
- To get from the act to the belief of the declarant, you are relying on the
sincerity of the witness
- To get from the belief to the conclusion, you are relying on the perception of
the declarant
o “DECLARANT CENTERED DEFINITION” - Statement is hearsay - IF it depends for value
upon the credibility of the out-of-court declarant.
- Declarant: speaker of whatever it is you are trying to get into evidence
- Witness: person who testifies at trial; sometimes the witness is also a
- Assertion: something someone says or does that someone offers as true
 Is it being offered to prove something is true? If words spoken or
conduct by the declarant are made in hope or expectation was that it
would be accepted as true- that is an assertion, and a statement is
defined under 801(2)
 Truth of matter asserted- must focus on the purpose for which the
evidence is being offered
 Case: Wright v Tatham (Case inside Zenni)
- Letter offered to prove the readers competency to create a will.
- Example of Letter: Younger cousin wrote letter to older cousin describing
his travels. The letter said “there is a plague in Alexandria, people are
dying.” The letter was offered to prove that the older cousin was mentally
- Can argue its not hearsay because its not offered for the truth of the matter.
Rather it is circumstantial evidence that the older cousin has some
competency because the younger cousin writing the letter believes he is
mentally competent enough to receive and understand the letter.
- Under Declarant Centered Definition - This letter raises hearsay dangers
because you are relying on the declarant’s credibility. He could have a faulty
perception of his cousin’s competency, maybe he hasn’t seen him in years
 FRE 801(a) – “Statement” - an oral or written assertion.
-Non-Verbal Conduct – also considered a statement if it’s intended as an
 CEC 225 - Same approach to nonverbal conduct as FRE
 HYPO (Ship) - Proponent offers as proof of a ship’s seaworthiness, that after an
inspection of ship, the captain took a voyage on it with his family -> NOT hearsay -
because it reflects his belief that ship is safe - so, it’s NOT an assertion.
- Hearsay dangers arise when relying on the captain's perception & judgment
& the captain could’ve thought it was dangerous but wanted to take voyage
 CEC 225 - “Statement” - means an oral or written verbal expression or nonverbal
conduct of a person intended by him as a substitute for an oral or written
- An actor’s nonverbal conduct - requires a reliance on the actor’s belief.
 Case: United States v Brown (5th Cir. 1977) - (Must show personal knowledge &
foundation OR it will be considered hearsay)
- In fraudulent tax preparations, government tried to show D’s knowledge
through an IRS investigator’s conversation with the taxpayer clients.
- RULE: Evidence directly derived from out of court statements of parties not
present at trial is hearsay
- Lack of personal knowledge and no foundation for her knowledge so it is
hearsay. Tax returns themselves are not hearsay because are not offered for
their truth, but to show the contents falsity.
 HYPO - Witness testified she knows buzzy and is asked “where did buzzy get his
tattoo”. - Is there an objection based on hearsay?
- Objectionable – because there is no foundation for showing personal
- Witness may not testify unless witness has personal knowledge of the
o Statement offered for any purpose other than for its truth = NOT HEARSAY
 Case: Johnson v. Misericordia Hospital (1980) - (Evidence Admissible to show it
existed, not for Truth of the Matter Asserted [“TOMA”])
- P sued hospital for negligent hiring of a doctor & offered evidence of
restrictions imposed on the doctor by other hospitals. P says the evidence
was offered to prove the records existed & hospital was negligent in not
asking about them.
- RULE: Out-of-court statements offered to prove the existence & availability
of info regarding competence & professional qualifications are NOT hearsay.
- The evidence in question was not offered for its truth, it was offered to
prove the existence of the information.
 HYPO - (Witness Changes Story) - Assume Federal rules. Witness testifies a light
was green, & later the opponent, whose position is that the light is red, offers
evidence that before trial, the witness told an investigator that the light was red. -
NOT Hearsay – because the out-of-court statement CAN be offered to show he’s
an unreliable witness – it inconsistently shows the person is capable of error & is a
less reliable witness, so it’s NOT hearsay - because it’s not offered to show the
- Would be hearsay - IF it was offered to show the light was red, but the judge
may admit it with limiting instruction
o Statement offered to show the EFFECT ON THE HEARER = NOT HEARSAY
 HYPO - (Self Defense) - Buzzy gets in a fight and claims self-defense. He says
someone told him that the defendant had beaten other people to death.
- Not hearsay - if offered to show Buzzy’s fear (effect on his state of mind)
- Hearsay - if offered to show the man was dangerous
 HYPO - (Weed Package) - Buzzy is arrested after picking up a package that
contained 40lb’s of weed, he claimed he didn’t know what was in the package, his
girlfriend sent him email saying “I sent you 40lbs of weed.” - Is this admissible?
- Not hearsay - if the statement is offered to prove Buzzy believed the
package contained weed.
- Hearsay - if offered to prove the package contained 40 pounds of weed, the
truth of the matter
 Case: Subramaniam v. Public Prosecutor (1956) - (Effect on the hearer)
- P was arrested & claimed he was acting under the duress of terrorists.
- RULE: Out-of-court statement are NOT hearsay if they are offered to prove
the reasonable belief on the part of the hearer
- Evidence of the terrorists’ statements were NOT offered to prove that what
they said was true, but that the statements caused duress.
 Case: Vinyard v. Vinyard Funeral Home, Inc. (Circumstantial evidence of state of
- Vinyard (P) fell & injured herself and tried to introduce evidence that the
funeral home had heard previous complaints about slippery floors
- RULE: An out of court statement is not hearsay if offered to prove notice
and knowledge of an unsafe condition.
- The statements would be hearsay - IF offered to prove the truth of the
matter, but they were offered to show funeral home was on notice of the
unsafe conditions.
 Not offered for what it says but for what it does. The words create legal right or
duty. It is not hearsay when offered to show the legal relationship exists.
 HYPO - (Book loan) - Professor lends a valuable book to a student, then dies & his
heirs sue for return of the book. Student claims it was a gift & the heirs offer
testimony that when Professor gave the student the book he said “this is a loan”.
- Not hearsay - it is legally operative language (admissible despite overlap
between what is said and what is offered to prove, called a performative
utterance or verbal act)
 Case: Ries Biologicals v. Bank of Santa Fe (1986) (Legally Operative Language)
- DMS defaulted on payment to Ries (P) so they discontinued distribution of
medical supplies. Ries wanted to introduce evidence of its oral contract and
guarantee of payment from the bank.
- RULE: Out-of-court statements offered to prove that the statements were
made are NOT hearsay
- The statements were NOT offered to prove the truth of the matter, but were
offered to show the statements were made, & thus were legally operative
language. They were not dependent on declarant’s credibility.
 Statements are NOT hearsay when used to indirectly show declarant’s state of
- HYPO - (Cruel husband) - Wife says “my husband is cruel”. Her statement
offered to show she doesn’t love him. - not hearsay, it is circumstantial
evidence of declarant’s state of mind (ie. that she doesn't love him)
 Case: Fun-Damental Too v. Gemmy Industries (1997) (Consumer’s State of mind)
- Novelty toy manufacturer sued competitor for copying product. D argued
the P’s testimony about customer confusion was inadmissible hearsay.
- RULE: A statement offered to prove declarant's state of mind is NOT
- Not offered to prove that the competitor was selling the product for a lower
price, but to show circumstantial evidence that the customers were
 Case: US v. Hernandez (1985) (Statements to prove state of mind must be
relevant to case)
- DEA agents out of court statements that D was a drug smuggler were
introduced to show her state of mind for starting the investigation.
- RULE: Out-of-court statements used to prove the state of mind of the party
must be relevant to the case at issue
- P relied on the statement as proof of D’s guilt & not as evidence of the state
of mind of the agent. Her state of mind for starting the investigation is
 HYPO – (Address Book) - To show that Buzzy & Wanda know each other, cops
offer address book seized from Buzzy with an entry of “Wanda 440-3298.” Is this
- NO - it can be circumstantial evidence of the declarant’s state of mind, that
they knew each other
 HYPO - (Computer Spreadsheet) - To show Buzzy’s premises were used for sale of
drugs, cops offer a spreadsheet from Buzzy's computer saying “Beany 3K $6,000.”
- NOT Hearsay – because used to prove character of the place where it was
found & not being used to show Beany owed a certain amount of money.
 HYPO - (Briefcase) - To show a briefcase containing cocaine belonged to Bill Snow,
police offer evidence that the briefcase had a nametag on it that read Bill Snow.
- Hearsay? - IF it is used to show the truth of the matter it asserts, which is
that the briefcase belongs to Bill Snow.
- If the evidence was fingerprints on the briefcase or that someone saw
somebody write his name on the case it could be circumstantial evidence.
 Case: US v. Jaramillo-Suarez - (Drug Evidence CAN be Circumstantial Evidence)
- Suarez (D) accused of drug offense & evidence of a pay/owe sheets found in
his apartment, recording drug transactions, was admitted to show the
character & use of his apartment.
- RULE: Drug evidence MAY be admitted as circumstantial evidence of
character and use of the place they were found
- No foundation is needed before admitting the documents because the
documents here are not used to prove the truth of the matter but to show
the character of the place where they were found.
 Case: US v. Rhodes (1958)
- Rhodes (D) accused of violating espionage laws of the US & objects to the
use of film canister of evidence about him.
- CAN be admitted - IF offered to prove something other than what it
contains, such as to show the agents knew about Rhodes
o Assertions Not offered for their Truth = NOT Hearsay
 Case: US v. Zenni (1980) - (Assertions not offered for their truth are NOT hearsay)
- While searching an apartment, agents answered telephone calls of people
placing bets. Prosecution wanted to introduce the phone calls to show the
callers believed the apartment was being used for betting operations.
- RULE: If assertion indicates truth of something, but it was not intended as
an as a particular assertion - it is NOT hearsay.
- The phone calls were not intended as a particular assertion & thus were not
hearsay - They instead show declarants’ state of mind.
- **When conduct is offered as a basis for inferring something other than the
matter asserted, it is not hearsay, b/c the danger of relying on the declarants
sincerity is reduced.
 HYPO - (Storekeeper points to Buzzy & says arrest that thief. Her statement is
offered to show Buzzy is a thief.) - This IS hearsay, even though it is a direction -
because it is used to prove he is a thief & not another matter.
- Sometimes directions contain assertions in them – so we can’t just go by a
flat statement that a direction is not hearsay
 Case: Commonwealth v Knapp (1830) - (Suicide is NOT an Assertion of Guilt, but is
Relevant Evidence)
- Suicide introduced as evidence of his guilt of committing murder.
- RULE: Non-verbal conduct constitutes hearsay - when it is intended as an
- Suicide committed by a person suspected of committing a crime CAN be an
Implied Assertion of Guilt – b/c a person cannot keep his guilt from god.
- FRE – We have to determine whether the act of suicide was intended as an
assertion – if so - then it IS hearsay. If not - then it is NOT hearsay.
 Case: Wilson v. Clancy (1990) - (If silence is not intended to send a message - it is
NOT hearsay)
- Bookkeeper testified that neither the attorney nor the client told her that
the attorney had instructed the client to re-title his property.
- RULE: When silence is not meant as an assertion - it is NOT hearsay.
- Under FRE, silence is conduct but if it is not intended to send a message it is
not hearsay. This had a low probative value and there could have been
many reasons why she didn’t know that information.
 Can silence ever be hearsay?
- FRE 801(a) – Non-verbal conduct IS hearsay - IF intended by the person as an
 ". . . if the person intended it as an assertion"
- Yes, one can send a message with silence (Example: If this is true, don’t say
anything…. if remain silent means assertion is true)
 Case: City of Webster Grove v. Quick (1959) - (Machine statements are not
- Quick (D) violated speed limit and the court permitted the police officer to
testify about the reading on the electric timer showing his speed.
- RULE: Hearsay rule does NOT exclude evidence obtained from reading an
electronic device
- The officer who read the electric timer was present for cross examination.
The evidence here is not dependent on the perception, memory or sincerity
of an absent declarant. the device was found to operate properly
- **Machine statements such as clocks, speed, breathalyzers are NOT
considered to be human statements even when read by a person.
 6th Amendment - In all criminal prosecutions, the accused shall enjoy the right to confront
witnesses against him.
o Important Points:
 Only applies to criminal cases - NO 6th Amendment right in civil cases
 Only gives this right to accused - Prosecution does NOT have 6th Amendment
o Testimonal Requirements:
 Formality
 Not foreeseeable that it would be used in prosecution
o Overview:
 Testimonial statements ARE admissible under Crawford only when the witness is
unavailable and there was a prior opportunity to cross-examine.
 Testimonial statements, without a prior opportunity to cross examine are NOT
admissible – because it violates Confrontation Clause.
 Emergency Okay - Statement made during an emergency is NOT testimonial and
is admissible.
 NON-testimonial statements ARE admissible because no Confrontation Clause
 Either the declarants intent to assist in a prosecution OR the intent of law
enforcement officers to gather information of a past crime is sufficient to make a
statement testimonial.
o Crawford Rule
 Testimonial <<<TODO: copy from slide>>>
 Case: Ohio v. Roberts (OVERRULED by Crawford-NOT GOOD LAW!!!)
o Facts: D charged with forging a check. SCOTUS allowed the P to introduce the
transcript of the preliminary hearing testimony of a witness who couldn’t appear at trial
& concluded D had adequate opportunity to cross examine the witness during that
o RULE: When a declarant is unavailable at trial, the opportunity to cross examine the
declarant at a preliminary hearing satisfies the “indicia of reliability” requirement.
o Reasoning: Under the confrontation clause, face-to-face confrontation between a D &
a witness against him are preferred. When witness isn’t at trial, you have to show he
was unavailable, AND the statement is reliable. The witness was questioned by Roberts’
attorney at the preliminary hearing, so her statements bore an adequate “indicia of
reliability” & thus, her statements were admissible against Roberts at trial.
o Roberts - 2 Prong Test:
 (1) Show unavailability
 (2) Show statement has an “indicia of reliability.”
 (Except when it was a firmly rooted hearsay exception).
 Case: Crawford v. Washington (2004) - (IF evidence is “testimonial” -> must have the chance
to cross-examine - otherwise it is NOT admissible)
o Basically ->
 Testimonial = NOT Admissible;
 Non-Testimonial = Admissible
o Crawford does NOT apply – IF: the declarant testifies OR out-of-court statement is NOT
offered for its truth.
o Facts: Crawford (D) was convicted of assault & attempted murder for stabbing a man
who allegedly tried to rape his wife. His wife did not testify because he declined to
waive the marital privilege & her out of court statement to the police that the victim
was not the first attacker, was used against D.
o RULE: In order for a testimonial out-of-court statement to be introduced into evidence,
the witness must be unavailable & the D must have had a prior opportunity to cross
examine the declarant.
 If NOT “Testimonial” does NOT matter if witness was available or not.
o Admitting this statement would violate D’s confrontation clause rights - because he
didn’t have the opportunity to cross examine her. The Roberts test of reliability is too
broad & too narrow - the framers of the constitution would not want constitutional
guarantees to hinge on notions of reliability.
 Court rejects Roberts reliance on reliability of statements & focuses on cross-
 Admitting a “testimonial” statement for truth against accused in criminal cases
violates confrontation rights - unless the accused has a chance to cross examine at
trial OR had a prior chance if declarant was unavailable.
 “Testimonial”: means it was made to law enforcement or court authority AND
could foreseeably used by the prosecution – (Example: ex parte hearing, affidavits,
police interrogation statements, formal proceeding, or statements made during a
plea negotiation.)
 Ongoing Emergency
o Primary Purpose Test
 Declaration made in the course of police interrogation are TESTIMONIAL if:
- Primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution (aid in prosecution)
 If primary purpose of investigation is anything other than gathering
 Then NOT testimonial (even if it could be used for prosecution, as long
as the primary purpose of it is NOT to prosecute, it’s okay).
- Exception to interrogation: Statement made was intended to incriminate
someone knowing the statement will be used for prosecution EVEN IF the
statement was not evoked during interrogation
 EX: declarant calls 911, blurts out accusation, and hangs up –
testimonial and subject to 6th amendment
o Case: Davis v. Washington (2006) (Refines scope of “testimonial” – IF it is ongoing
emergency -> it is NOT testimonial & thus IS admissible)
 Facts: Victim called 911 emergency because of a domestic disturbance and then
was not available at trial. The 911 call was admitted into evidence over D’s CC
objection. In Hammon, the police responded to a domestic disturbance at the wife
filed out a “battery affidavit” which was admitted as an excited utterance.
 RULE: Statements to the police are:
- “Non-Testimonial” - IF the primary purpose is to enable the police to meet
an ongoing emergency (and thus admissible)
 Objective Test – Takes into account the circumstances apparent to the
officers as they responded to the scene.
- "Testimonial" - IF the primary purpose is to prove past events relevant to
criminal prosecution (and thus NOT admissible).
 Analysis: 911 call was properly admitted as it is NOT-testimonial - because it was
made in course of police interrogation & the primary purpose was emergency
assistance. Statements are testimonial when there is not an ongoing emergency
& primary purpose is to establish facts or prove past events. In Davis, the victim
was describing events as they actually happened in the 911 call to receive help,
where as in Crawford, the wife was describing past events. In contrast, in
Hammon, the police interrogation is testimonial because they weren’t assisting an
emergency & investigating what happened.
 Davis limits the concept of testimonial from Crawford by indicating:
- That not very much formality is required for statements to be testimonial
- When mixes purposes - IF primary purpose is about emergency -> then it is
NON-Testimonial (So, some statements are Non-Testimonial, even if the
declarant can foresee prosecutorial use)
 Things that are Automatically NON-Testimonial (& thus, NOT subject to C.C.):
- Dying Declarations
- Business Records kept by Private Businesses (according to Cali lesson)
- ***Consider dicta in Crawford that indicates that certain hearsay lies outside
the scope of the Confrontation Clause – because: Courts routinely admitted
the hearsay without confrontation in the years preceding the adoption of
the Constitution.
 Ongoing Emergency Expanded - Suspect Still at Large
o Declaration made in the course of police interrogation are NOT TESTIMONIAL & not
subject to 6th Amendment if:
 Primary purpose of interrogation is to enable police assistance to meet an ongoing
emergency – typical in 911 call
- Even if the declarant is aware the statement will be used in later prosecution
– still will NOT be testimonial if the purpose is to calm an ongoing
- Statement is testimonial if the primary purpose of the interrogation is to
prove past events for later prosecution.
 On-Going Emergency BROADENED by Michigan v. Bryant.
- Expanded emergency doctrine to statements made just when the
perpetrator is still at large, not necessarily near by or an impending threat
- Remember if suspect not in custody -> then argument that statements made
were part of on-going emergency are probably strong under Michigan.
- Case: Michigan v. Bryant (2011)
 Facts: Victim was shot and found at gas station. Police questioned him
at the gas station where victim told them D had shot him, but he didn’t
know where D was.
 Evidence: P wanted to submit the statements by the victim.
 Objection – Confrontation Clause. Overruled because statement
found not to be testimonial. Since the perpetrator was still at large,
the questioning was part of dealing with the on-going emergency and
the statements were informal.
1. Whether an emergency exists and is ongoing is highly context-
based inquiry.
 The duration and scope of emergency may depend by the weapon
used in the crime as it may be a threat to the public and police.
 DISSENT (Scalia) -> Majority opinion distorting "our CC jurisprudence
and leav[ing] it in shambles. Instead of clarifying the law, the court
makes itself the obfuscator of last resort” and “creates an expansive
exception to the CC for violent crimes.”
 Primary Purpose anything else besides gathering evidence
- Example: Child speaking to psychologist for purpose of getting therapy – not
to create record – and psychologist primary purpose is to provide treatment
 General Rule - A party's words or acts may be offered as evidence against him.
o Even if offered to the truth of the matter, admissions of a party are NOT hearsay.
 What you say can be used against you - (you CAN explain on the stand if need to)
o NOTE: No personal knowledge is required.
 Distinguished from Declaration Against Interest
o Admissions need not have been against interest when made.
o DAI applies only when declarant is unavailable as a trial witness
o Admissions are admitted only against the party, whereas DAI can be admitted for
purposes for or against.
 _OPPOSING_PARTY_ADMISSION - FRE 801(d)(2)(A) - Admission by a party - statement is
offered against a party (by the opposing party) AND is the party’s own statement (Anything
you say can be used against you)
o This is the result of the adversarial system - it is not being offered because it is reliable
or trustworthy, it is being offered because its relevant to the case.
 By saying there is no satisfaction of the conditions of the hearsay rule, the
advisory committee means the trustworthiness condition is not satisfied
o Case: Reed v. McCord (1899) - (Anything you say MAY be used against you - does NOT
need to be based on personal knowledge)
 Facts: Reed (P) introduced McCord (D) statements regarding the cause of injury &
death. These statements were not based on personal knowledge of the accident,
but he had heard about it from another employee.
 RULE: Out-of-court statements made by the D ARE admissible against the D -
(admissions do NOT have to be based on personal knowledge)
 Rationale: No error in admitting – because admissions are free of the
requirement of personal knowledge. It is highly improbable that a party will admit
or state something against himself, unless it is true.
 FRE 801(d)(2)(B) - Admission by party - manifesting an adoption.
o Party has adopted a belief in a statement’s truth (CAN agree -OR- remain silent)
 Explicit Adoption - "What he just said is correct!" (very rare)
 Implied Adoption from Silence - Test for adoption by silence - person would deny
the statements made in their presence if they were untrue by failing to deny the
statement he adopts it.
o Case: US v. Hoosier (1976)
 Facts: Hoosier (D) was charged with armed robbery & the P introduced
statements by his girlfriend indicating they had stacks of money in their hotel
 RULE: Silence CAN be an admission – (IF you would expect the silent person to
deny the statement -> they are taken to have manifested adoption of belief in the
truth of the statement.)
 Rationale: Total circumstances surrounding the statement should be taken into
consideration before admitting, here the statements were made in the presence
of D and he would have denied it if it wasn’t true.
o Case: State v. Carlson (1991) - (Judge decides whether statement has been adopted)
 Facts: When cops asked D about needle marks on his arm, he denied they were
needle marks because his wife was present. His wife called him a liar & D didn’t
 RULE: A party’s intent to adopt, agree or approve another person’s statement is
a preliminary question of fact for the judge
 Rationale: It is a question for the judge – because proof of the intent to adopt,
agree or approve concerns the admissibility of the evidence. Here, judicial
intervention is required to prevent the improper use of the evidence. Judge finds
the nonverbal reaction is too ambiguous to establish any particular interpretation
& the evidence of the wife’s hearsay statement & reaction were not admissible.
 _AUTHORIZED_ADMISSION - FRE 801(d)(2)(C) - Statement by a person authorized to make a
statement = admissible - when the agent is authorized to speak.
o HYPO - Buzzy signed release allowing his doctor to provide info about his medical
condition to his insurance company. The Doc answered the insurance company’s
questions & Buzzy later sued the insurance company, & it sought to put the doctors
answers in to evidence to prove the truth of the matter asserted. Are the doctors
statements admissible?
 Evidence IS admissible because the doctor was authorized to make statements.
 _ADMISSION_OF_AN_AGENT - FRE 801(d)(2)(D) - Statement by party agent in matter of
employment – agents’ admission IS admissible, when the agent is authorized to speak or the
agent is speaking about a matter within the scope of his employment while he is employed.
o Independent Contractor = NOT an Agent.
o Statements Made AFTER Employee is Fired = NOT covered by this rule -> because
they are NOT employed – (only admissible against the individual, not employer)
o Anything the Relates to Matter of Employment - FRE rules are broad; and
employee is authorized to speak about anything relating to their work. Big Mack.
o Case: Mahlandt v. Wild Canid (1978) - (Agent statements ARE admissible - even
without personal knowledge)
 Facts: Employee sent note for boss that a wolf bit a child.
 RULE: Under FRE 801(d)(2)(D), statements made by agents within scope of
employment are admissible & do NOT require personal knowledge on the part of
the agent.
 Application: The employees statements were admissible against the employer
and employee regardless of whether he had personal knowledge of the facts.
 Rationale: FRE does not cover agents who are taking about something that they
are not responsible for – because they would not likely to be reliable for their
- If evidence is otherwise admissible, would want to argue Rule 403:
prejudicial; but in the case, the nature of party opponent statements make it
difficult bc “do not use my own words against me bc prejudicial”
o Case: Big Mack Trucking v. Dickerson (1973) (Whether statement is Admissible
Depends on Agency Law of State or FRE -> TX = narrow & FRE = Broad)
 Facts: After accident, employee told a Company VP & a cop that his breaks were
defective and that he saw the guy get crushed between the trucks.
 RULE: Under TX law, an agent’s hearsay IS admissible against the principle when
the trial judge finds the statements were authorized. Note under TX law the
employee had to be specifically authorized to speak on employer's behalf; the
federal rule 801(d)(2)(D) allows anyone employed to speak on the scope of their
 Reasoning: Employee statements were NOT admissible – because he was not
authorized to speak about the situation, so not admissible against the company.
 Different Result under FRE -> because FRE is more broad (anything that relates to
matters within the scope of employment IS admissible)
o Case: Sabel v. Mead Johnson (1990) (agent/company must have fiduciary relationship;
company control over the agent's actions)
 Facts: Sabel (P) sued drug manufacturer and tried to introduce a meeting tape of
where experts and employees discussed the side effects of the drug.
 RULE: Statements made by out-of-court consultants at meetings do NOT
constitute admissions.
 Analysis: The outside medical experts in this case were neither agents of the D or
authorized by the D to make the statements about the drug.
 Reasoning: For an agency relationship to exist, the principle must have
- (1) power to alter the legal relationship,
- (2) fiduciary relationship,
- (3) the right to control the agents conduct with respect to matters within the
scope of agency.
 Conclusion: Here, no evidence that the consultants were speaking on D’s behalf.
 FRE 801(d)(2)(E) - Statement by coconspirator of a party during the course of –AND - in
furtherance of, the conspiracy – are admissible.
o Requirements:
 (1) Statement by coconspirator of party;
 (2) In furtherance; &
 (3) During course of conspiracy.
o Rationales for Admitting Co-Conspirators Statements:
 Trustworthy – There is incentive to be accurate – because want conspiracy to
 Statements are Unvarnished - At time statements are made they are not aware a
lawsuit will occur and the statement will be used against them.
 Conspirators are partners in crime = they are each other’s agents.
o Case: US v. DiDomenico (1996)
 Held: Statements of co-conspirators made in furtherance of the conspiracy are
admissible – because they are each other’s agents, & the principle is bound by his
agents statements within the scope of the agency
o Case: US v. Goldberg (1997)
 Held: Statements made by co-conspirators before a later joining party ARE
admissible against the later joining party.
 Reasoning: Statements made before the D joined the conspiracy ARE admissible –
because conspiracy is like a train.
o Case: US v. Doerr (1989) (Statement must be in furtherance of a conspiracy)
 Facts: D owns strip clubs running prostitution ring. Govt. introduced statements
as a description of illegal activities made by Doerr’s co-conspirators against him.
 RULE: Statements of a co-conspirator must be made in furtherance of the
conspiracy in order to be admitted against other members.
 Analysis: Statements are in furtherance of a conspiracy when they are intended
to help each perform his role. Narrative declarations or casual conversation are
NOT statements in furtherance of a conspiracy.
- Here - the statements were NOT furthering a conspiracy- the 1st was a
narrative of an event & the 2nd was mocking someone’s ignorance of the
o Case: Bourjaily v. US (Statement CAN be used as proof of membership in conspiracy)
 Facts: Cocaine deal in the parking lot. Government introduced evidence of a
telephone conversation with D & a friend to prove a conspiracy to distribute
 RULE: Courts CAN use all kinds of evidence to make preliminary determination as
to whether other items of evidence are properly admissible.
 Analysis: Judge decides whether D was a member of the conspiracy in ruling
upon whether the coconspirator exemption applies to statements, & judge is NOT
prohibited from using the statement itself as evidence that a conspiracy existed &
the D was a member – CANNOT bootstrap. Does NOT have to determine by
independent evidence that the conspiracy existed.
- Relied on FRE 104(a) - Judge is NOT bound by the rules of evidence;
 Held: Standard of proof for 104(a) questions is preponderance of the evidence
 Final sentence of FRE 801(d)(2)(E) amended to codify Bourjaily -> contents of the
statement shall be considered, but are NOT alone sufficient to establish the
declarant’s & defendants participation.
o CEC 1223:
 (a) statement was made while participating in the conspiracy in furtherance of the
 (b) statement was made prior to or during the time the party was participating in
the conspiracy
 (c) evidence is offered after admission of evidence “sufficient to sustain a finding
of the facts…”
- Cf. Federal: Preponderance of evidence.
 Under CEC -> Lower standard to prove a conspiracy – (Co-conspirators statement
IS admissible - IF the judge thinks a reasonable jury could believe it, whether he
has been persuaded or not.)
 Bootstrapping NOT Permitted - must be evidence other than statement itself to
support statements findings- “sufficient to sustain a finding of fact”
o HYPO - (Buzzy brags to his tennis partner that “uncle & I will make fortune on a cocaine
deal.”) – Is statement admissible against uncle?
 IF trying to get him to invest in the conspiracy -> it could be in furtherance of the
 But IF it’s “just chatter” -> it is NOT in furtherance of the conspiracy.
o HYPO - (Buzzy is inside a hotel room conducting cocaine transaction & tells his
customers that his partner, the infamous gangster, Tony, is waiting outside the door.) -
Admissible against tony?
 Is it in furtherance of the conspiracy? -> because he is outside, he may intimidate
others to the transaction - so he IS in furtherance of the conspiracy.
o HYPO – (Buzzy arrested for drug offense & from jail he calls a friend & asks the friend to
help cover up the fact that he and Tony were involved in selling cocaine.) - Is this
admissible against tony?
 Under federal law - the conspiracy to sell the drugs & then to cover it up is two
separate conspiracies.
 Why let in some hearsay statements???
o Necessity - The declarant is dead or unavailable
o Trustworthiness - The content or circumstances create trustworthiness of the
o Burden of Proof - Proponent of the exception has the burden to prove the exception
 Standard Questions:
o What's the justification for this exception?
o What does it add to the other exceptions?
o If the case is not a federal rules case:
 How would this case be decided … <<<<TODO>>>>
o How does it differ from the CA rule?
 FRE 805 - Hearsay Within Hearsay = NOT excluded - IF each part of the combined statements
falls under an exception to the hearsay rule.
 FRE 803(1) - Present Sense Impression- “Statement describing or explaining an event or
condition made while declarant was perceiving an event OR immediately after”
o Foundation Facts:
 Immediacy
 Related to event
o Why Statement is Trustworthy? – because it was said at the time and there shouldn’t
be memory or false perception problems.
 NO “excitement” requirement for a present sense impression.
o CEC 1241 - Contemporaneous Statement = NOT admissible IF:
 Offered to explain, qualify or make understandable declarant’s conduct; AND
 Made while declarant was engaged in the conduct.
- “Engaged” = when the statement describes OCDs activity, can’t just observe.
o Case: State v. Jones (1987) - (Bootstrapping IS acceptable - when the judge is not
bound by the rules of evidence)
 Facts: Victim’s testimony was corroborated by statement of truckers saying they
saw a car trying to catch up to a trooper. Admitted as present sense impression.
 RULE: Present Sense Impression does NOT require declarant to be at trial for
purposes of cross examination.
 Reasoning: The party offering the statement must show the declarant spoke from
personal knowledge & the identity of the declarant must be established. There is
no safeguard against lying, but the inherent trustworthiness of a statement of
perception given contemporaneously with the event is sufficient to outweigh the
concern of fabrication.
Application: Trooper said “look at!” -> Shows speaker is contemporaneously
perceiving incident.
 Under CEC 1240 & 1241 -> NOT Admissible – because OCD isn’t excited and only
 Conclusion: **Bootstrapping IS acceptable under a regime where judge not
bound by rules of evidence to whether foundation facts exists.
o HYPO - I arrive late to work to find someone else’s car in my reserved parking space. I
fly into a rage an hour later, while still under the stress of excitement, I exclaim “oh my
god, someone took my parking spot.” My statement is offered to prove its truth.
 NOT a Present Sense Impression -> because NOT made while perceiving event
 NOT Excited Utterance -> because it has to be an objectively startling event.
- Don’t know if this individual flies into a rage about everything, & losing a
parking spot isn’t an objectively startling event, like a car crash.
 Comparison of 803(1) and 803(2)
o There is no excitement requirement for a present sense
impression and no immediacy requirement for an
excited utterance.
 FRE 803(2) - Excited Utterance: Statement related to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or condition.
 Foundation Facts:
o Excitement
o Objectively startling event
o Related to event
 Notes
o Why Statement is Trustworthy? – because the individual doesn’t have time to
self-reflect before making the statement & the stress of excitement suspends the
capacity to fabricate, so hearsay danger of sincerity is reduced.
o Possible Problem: Hearsay danger of perception & judgment possibly increased.
o NO immediacy requirement for an excited utterance, but individual must still be
under the stress from the occurrence.
o Periods of Calm Reflection - Prevent the making a future excited utterance
because the person has had a period of time of calm reflection to make up lies.
 CEC 1240 - Spontaneous Statement – NOT inadmissible – IF:
o It purports to narrate, describe or explain an act perceived by the declarant; AND:
o Was made spontaneously, while declarant was under the stress of excitement
 Case: Truck Insurance Exchange v. Michling (1963) - (Must be a spontaneous utterance)
o Facts: In action for the death of her husband, Michling tried to admit hearsay
statements of her husband after his accident, saying he had hurt his head, one
month before his death to show the accident occurred at work
o RULE: An excited utterance must raise the presumption that it is a spontaneous
utterance of thought from an occurrence.
o Rationale: Utterances qualify as hearsay exceptions because they’re trustworthy,
& must relate to the circumstances preceding it. Here - the statements are the
only evidence of the occurrence (there’s no independent proof P suffered an
injury at alleged time & place) -> So, it’s “bootstrapping”- laying the foundation
for hearsay exception by using hearsay itself to lay the foundation. ->
(Bootstrapping = NOT OK in Texas)
 Under FRE 104 - the judge CAN determine if the event is startling enough to
qualify as a present sense impression.
 Lira v. Albert Einstein Medical Center (1989) (Pg. 227) -
o Lira testified that when a physician examined her throat he said “who butchered
o RULE: Statements Must be a Product of Reflex, Rather than Controlled &
Deliberate Thought
o Ct. found it was a statement offered to prove the truth of the matter asserted,
that Lira had been “butchered”. Ct. found truthfulness of utterance depends on
the spontaneity, the utterance must be instinctive or reflexive statement rather
than deliberate. The PA Ct thought it was a statement made under medical
judgment & opinion & not an instinctive one.
 FRE = more liberal than PA Rule-under FRE there is no requirement that the
utterance be instinctive.
 Re-Excited Utterance - even if person has long periods of calm after the event, in case
of child or incompetent person they might be in suggestible state. - Person can become
re-excited by something connected with the event.
o In some cases the excitement is not convincing, but in other cases, it is.
o HYPO -- D was driving a car & was involved in a serious auto collision. Years later,
D saw the other driver on the street & became extremely excited & exclaimed,
“he ran a red light, that’s why it happened”. D disappeared & his statement is
offered into evidence to prove the truth of the matter asserted. - admissible?
 Here - there could be other facts to increase level of excitement, such as a
fight between the two, or a serious lingering injury from the auto accident.
 FRE 803(3) - Then Existing Mental, Emotional or Physical Condition = Admissible ->
“Statement of then existing state of mind, emotion, sensation or physical condition… 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.”)
 FRE 803(3) - Statement of then existing mental, emotional, or physical condition:
o A statement of then-existing state of mind, emotion, sensation or physical condition IS
admissible, but NOT a statement of memory or belief to prove a fact remembered.
 Admissible when a person’s state of mind at a certain time is at issue
o Exception covers a declarant's statement about his then-existing:
 State of mind, including motive, intent or plan ("I intend to go to Chicago
 State of emotional condition ("I'm so sad because…")
 State of sensory condition ("My lower back really hurts right now")
 State of physical condition ("My leg feels as though it's broken")
o Rationale - Trustworthy because:
 No Perception Problem - The declarant knows his own state of mind, so there are
no perception problems; and
 No Memory Problem - The statement deals with the declarant's present state of
mind, so there can't be memory defects.
o What does FRE 803(3) add to FRE 803(1)?
 It is a subcategory – (a specialized application of “present sense impression” & it
enhances the usefulness & accessibility of FRE 803(1).)
 It adds the part on “Statements about Wills” -> statements of memory or belief
fall under 803(3) - IF they relate to the declarant’s will.
o Can be a Statement of Intent – IF offered to prove the declarant did the fact intended,
& would depend on the fact that declarant didn’t meet obstacles or change his mind.
 Examples of statements that are not admissible under exception:
- Belief relating to memory – “I believe I saw that man leaving the bank”
- Truth of the matter asserted – “I believe he is as smart as ever” – (offered to
show he is smart.)
 Case: Adkins v. Brett (1920) (Admissible statements are restricted to present state of mind-
NOT memory.)
o Facts: Husband sued Brett for alienating his wife’s affection & introduced his wife’s
statements about spending time with Brett to show the wife’s preferences (showing her
state of mind).
o RULE: When intention, feeling or mental state is material to the issue at trial ->
evidence of person’s declarations ARE admissible as an exception to hearsay.
o Holding: Court found that the wife’s statements ARE admissible of her feelings at the
time, but not for their truth. A jury limiting instruction should have been given so that
the statements were only considered for her state of mind & weren’t prejudicial
towards the D, but there was no jury instruction -> so the verdict was tainted.
o Example:
 "You're distasteful to me." -> Admissible. Present Sense Impression
 "I dined with him" -> Inadmissible. Statement of memory
- But may be admissible because of its effect on the hearer.
 "He gave me flowers." -> Inadmissible. Statement of memory.
 Case: Mutual Life Insurance v. Hillmon (1892) (Future looking statements = OK, but ONLY to
prove the conduct of the declarant, NOT another person.)
o Facts: Mutual Life (D) denied recover of life insurance policy on the grounds that the
body found was not Hillman. D offered letters from Walters to his family expressing his
intention to go with Hillman to Colorado.
o RULE: When intention of a party is itself a distinct & material fact in a chain of
circumstances -> it MAY be proved by oral or written declarations of the party.
o Letters ARE Admissible – because: they show Walters intention, at the time of writing,
to go with Hillman & made it more probable that he actually did go with him.
o Same Result under FRE - FRE 803(3) codified Hillman - it is a statement of intent offered
to prove the act intended.
o Note - Hillman does NOT apply to statements about the past - (“I went to Paris last
summer”) - only statements about future intention (“I am going to Paris next summer”)
as circumstantial evidence that the declarant did go to Paris.
 Case: Shepard v. US (1933) (If statement is prejudicial & backwards looking in time -> it is
probably excluded)
o Facts: Shepard (D) accused of murdering his wife by poisoning her. Government
introduced her statement after she drank poison, “Dr. Shepard poisoned me” to oppose
Shepard’s contention that the wife was suicidal.
o RULE: Declarant's direct & present state-of-mind may NOT be used to prove a past
o Here - the statement was NOT made under impending death, & did NOT show her
present thoughts & feelings, but rather was offered to show her perception of a past
event (that Shepard poisoned her) -> so, it is NOT a state-of-mind exception.
o NOTE: Other avenues for getting it in: (1) dying declaration – can use for TOMA; (2) not
hearsay – introduce it to show willingness to live; probably prejudice issue under 403
 HEARSAY EXCEPTION - MEDICAL DIAGNOSIS - FRE 803(4): Statements for purpose of medical diagnosis
or treatment & describing medical history, past/present symptoms, pain or cause = admissible
 Causation statements ARE relevant - IF they pertain to treatment or diagnosis, CANNOT
admit statements of fault (treatment doesn’t depend on who was to blame)
o Ex. (Admissible) -> “I slipped and fell on a banana.”
o Ex. (Inadmissible) -> “I slipped and fell on a banana left by the stalker.”
 Excludes statements regarding blame/fault made while receiving
o Exception - Statements made by child about fault of injury may be allowed to try and
stop abuse
 Rationale - Patient has incentive to be truthful –because they want to be properly diagnosed
by the doctor; expedience, doesn’t require a dr/nurse to come testify
 3 Requirements
o Subjective-Patient must actually be receiving medical diagnosis or treatment
o Objective- Has to be pertinent to diagnosis or treatment
o Statement must fit within rule: (1) an account of medical history (2) past or
present symptoms (3) or report
 Rule is fairly expansive:
o Covers statements about present and past symptoms and even cause of the injury as
long as pertinent to medical diagnosis
o Covers CURRENT conditions
o Statement doesn’t have to be made by the injured party, can be made by anyone
associated with the medical services (ex. paramedic, nurse, or anyone used in attempt
to get diagnosis) NOT statements made by the doctor; can apply to family members
who brought the patient in for medical care (family members typically have same
incentive to speak truthfully)
o Statement can be made to doctor, ems, family members
 Even For Litigation - This exception applies even where the doctor is hired in anticipation of
litigation if it’s still for the purpose of diagnosis.
 CEC 1253 - Statements for the Purpose of Medical Diagnosis:
o Applies ONLY to minors who are victims of child abuse or neglect.
 CHILD-ABUSE – Special Case
o A child may be able to tell a physician who caused his injuries because removing the
child from the custody of the abusive adult may be part of treatment
 No Other Motive - Also there must be no other signs of motive besides the child is
JUST ANSWERING THE Q’S of the physician
o Case: US v. Tome (1995) - “Fault” statement exception in child sexual abuse cases
 Facts: Six witnesses testified regarding what child victim told them about her
father sexually abusing her.
 Evidence: Testimony pretty much saying the father abused her and that’s where
injuries came from.
 Holding: Objection – hearsay. Overruled. A child may be able to tell a physician
who caused his injuries because removing the child from the custody of the
abusive adult may be part of treatment. The child’s statements were to babysitter,
mother, 3 other physicians, and social worker -> all covered under 803(4)
 Non-treating physician:
o If the statement is made to a doctor who is not furnishing treatment, but who is
consulted so that he can testify about the patient's condition at trial, the statement is
covered by the federal exception (but not by the common-law exception).

Recap of Expansive Federal Exception:
o Exception covers not only present symptoms, but also past symptoms and the cause of
the injury, if pertinent to treatment – NO FAULT STATEMENTS
o Statement is admissible even if made only for diagnosis and not treatment (doctor
retained only for testimony)
o Statement is admissible even if made to someone other than a medical professional
(i.e. family member)
o Statement need not be made by the injured person – ie. mother’s statement to a
doctor about their child
 Compare 803(3) & 803(4):
o Then existing state of physical condition: applies to present physical conditions said to
o Statement made for medical diagnosis or treatment: applies to present physical
conditions AND past physical conditions and medical history said to certain people
o CEC 1251: Unavailable + emotional, physical, mental state has to be an issue in case +
cannot describe the cause of the injury (at all) (can be made to anyone, not limited to
o CEC 1253: ONLY APPLIES to MINORS who made the statements when they were under
the age of 12 and who were victims of child abuse or neglect and who made statements
for purposes of medical diagnosis or treatment
 Exam Tip: Declarations of past physical condition made to a doctor for purposes of diagnosis
or treatment (even if the doctor is employed to testify at trial) are admissible.
 FRE 804(a) - “Unavailability as a Witness”: Includes situations in which the Declarant:
o (a)(1): is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarant’s statement;
o (a)(2): persists in refusing to testify, despite a court order to do so;
o (a)(3): testifies to lack of memory on the subject matter of declarant’s statement;
o (a)((4): is unable to be present - due to death, physical or mental illness; or
o (a)(5): is absent from the hearing & the proponent of the statement has been unable to
procure the declarant’s attendance by process or other reasonable means.
 Judge CAN decide the preliminary fact of whether the declarant is unavailable.
 Favor Availability - IF judge thinks the evidence on unavailability is equipoise ->
then, for purposes of former testimony, the judge should determine that the
declarant IS available.
 FRE 804(b)(1)–(Hearsay Exceptions) - Former Testimony = NOT excluded by the hearsay rule
if the declarant is unavailable as a witness:
o Refers to: Transcripts of testimony given by a witness at prior deposition, hearing, trial,
another case (Note - grand jury testimony is NOT “former testimony” – because there is
NO cross examination)
o Foundation:
 (1) Declarant unavailable as a witness;
 (2) Party who evidence is offer must have had an opportunity to cross-examine
(develop the testimony) in prior proceeding;
 (3) The party it is offered against must have been the exact same party (or
predecessor-in-interest in a CIVIL case) in the former proceeding
- the requirement for CRIMINAL cases is more stringent
 (4) The party it is offered against must have had similar motive to cross-examine
in the prior proceeding.
- Different motives in different proceedings - lawyers often have different
motive for cross-examination in different types of proceedings.
- Example: (at Preliminary Hearing) -> the motive is more investigative.
- 4 factors similar motive: Courts will consider (1) what was the type of
proceeding, (2) what was the trial strategy [trying to accomplish with the
questioning, purpose of the testimony] (3) what were the issues and parties
(4) financial issues at stake
 have to be able to compare prior proceeding the current proceeding
and they should line up
o Rationale: "Cross-examination, oath, the solemnity of the occasion, and in the case of
transcribed testimony the accuracy of reproduction of the words spoken, all combine to
give former testimony a high degree of credibility."
o Policy: If declarant is available to testify, we don’t want them to be bound to another
lawyers cross examination, thus it is limited to witnesses that are unavailable.
 “Predecessor in Interest” - refers to the predecessor from whom the party
received the interest or obligation that is at issue in the current litigation.
- Treats the predecessor requirement as satisfied when a party in the prior
case had similar interests & similar motive to cross examine.
o Case: Travelers Fire Insurance v. Wright (1958)
 Facts: Two brothers tried to recover under a fire insurance policy. One brother
was said to have same motive and interest from previous arson case.
 RULE: Former witness testimony of a criminal case CAN be used subsequently in a
civil trial – IF:
- (1) inability to obtain the witness;
- (2) there was an opportunity to cross-examine the witness in the former
- (3) same issues/motive at the 2 trials.
 Reasoning: Court found the issue in both cases was whether D procured the
burning of the building & the opportunity to cross examine JB in the 1st case on
the same issue had the same motive that JC had. They admitted the testimony -
because did not find that it would have been unjust to do so.
 **Different Result under FRE – because: there is a different party involved. (1
brother was not a party in the first proceeding)
o Case: US v. Salerno (1992) (Must have same motive to develop testimony in both
 Facts: Government wants to show the mob (D) controlled construction company
& D wants to admit witness’s grand jury testimony to counter this.
 Held: In order to allow a criminal D to introduce testimony from a grand jury -> it
must be shown that the prosecutor has the same motive in questioning a witness
before the trial & at the hearing.
- Here – SCOTUS held the prior grand jury testimony to be NOT admissible.
 Note: (if the same facts, but govt. seeks to admit preliminary hearing testimony
against the D -> inadmissible) – because D lacks opportunity to cross examine at
preliminary hearing.
o Possible uses of former testimony and judgments:
 Testimony as evidence - former testimony rule
 Judgment as evidence - FRE 803(22)
 Judgment as preclusion
o Issue Preclusion (Collateral Estoppel)
 General - When an issue has been examined in a prior action, it may be
introduced in future actions under the former testimony exception FRE 804(b)(1)
or judgments of conviction exception FRE 803(22).
 Preclusion vs. Evidence - Under collateral estoppel, judgment in the first action
may preclude re-litigation of the issue in the second action. In contrast, when
evidence of the first judgment is used merely as evidence, it can be contradicted
with other evidence and the second trier of fact can reach a different result.
- Must Be Decided on Merits - Issue preclusion does not apply when the issue
sought to be precluded was not actually litigated in the first action (guilty
plea in first action means nothing was litigated—but can be used as an
admission under FRE 801(d)(2)), when determination of the issue was not
essential to the judgment, when the first action did not come to a final
judgment, when the procedures in the two courts are substantially different,
when the burden of proof has shifted, when the public interest would be
detrimentally affected, when the second action was not foreseeable, or
when there was inadequate opportunity or incentive to litigate.
 Abandonment of Mutuality (ie. requiring that both parties be the same in both
actions) - A stranger to prior litigation is often permitted to use issue preclusion
against a party who had a full and fair opportunity to litigate in the prior action
(mutuality doctrine has generally been abandoned).
- Fairness Considered - There may be exceptions when issue preclusion would
be unfair (e.g., court in first action did not allow discovery or follow rules of
- Convictions Preclude Re-litigation of Same Issues - Generally, prior
convictions in criminal cases can be used to preclude re-litigation of the
same issues in civil cases, so long as there was a full and fair opportunity to
defend the criminal action and there were no apparent defects in the
 FRE 804(b)(3) - Statement Against Interest - if the declarant is unavailable, a statement
against interest IS admissible – IF, when the statement was made, it was contrary to
declarant’s pecuniary or proprietary interest, AND “a reasonable person in declarant’s
position would not have made the statement, unless believing it to be true”
o Foundation Requirements:
 Declarant unavailable;
 Statement was sufficiently against legal (pecuniary/proprietary) interest;
 Statement was corroborated,
- Note: Corroboration IS required – (whether the statement is used to
exonerate – OR - to incriminate)
 Differs from “Admission of Party Opponent” – because:
- In SAI, the circumstances provide a guarantee of trustworthiness.
- In SAI, no requirement that the statement be offered against a party
opponent - & thus, it can be offered by anyone against anyone.
- In SAI, the declaration need not have been against the party's interest when
- In SAI, the declarant must be unavailable.
 Practical Use:
- SAI is used when the declarant is not a party.
- Strategy: If you represent a party and want to get a declaration by the
opposing party into evidence, treat is as an admission, not an SAI.
 Pecuniary Interest
- CL - version of the exception requires that the statement have been against
the declarant's pecuniary or proprietary interest. Statements that would
subject the declarant to criminal liability, or to social scorn, but not affect his
financial well-being, have traditionally not been covered by the rule. Thus
declarations against interest have tended to have a business or financial
- Federal Rule - covers statements against penal interest.
 CEC 1230 - Declaration Against Interest:
- Declarant is unavailable, statement is against pecuniary, proprietary interest,
subjected him to risk of civil or criminal liability, created a risk of social
disgrace in the community, that a reasonable person would not have made
the statement unless believing it to be true.
- CEC allows for statements against social interests
 Case: State v. English (1931) (Old CL rule applies only to pecuniary interest)
- Facts: A 3rd party confessed to the murder that D was charged with & the
3rd party could describe the victims death in detail.
- RULE: Common law hearsay (NOT FRE) prohibits admission of 3rd party’s
out-of-court confession at another party’s trial.
- Common Law View - This is example of the CL view, which did NOT admit
statement against penal interest – because they’re very suspicious (the
accused might induce someone to give false testimony). The evidence IS
hearsay (it was offered to prove the truth of the matter) & was NOT made
under oath.
- Different result under FRE - FRE would’ve admitted the statement –because
declarant was unavailable, statement was against penal interest & was
 Case: G.M. McKelvey v. General Casualty (1957) - (If a statement could be taken
as a statement against interest -> then it will be)
- Facts: Company tried to recover money his employees embezzled.
- Held: Written confessions of employees offered to show misappropriations
of funds ARE admissible to prove fact and amount of loss.
- Rule: Statements against Interest ARE admissible - IF the declarant is
unavailable, has personal knowledge of the facts, the statement was against
economic interest, and declarant had no motive to falsify the facts.
 Case: US v. Barrett (1976) – (Statement CAN be self-inculpatory - IF declarant
would ordinarily not know that information)
- Facts: During a card game, an out-of-court declarant says D was innocent &
that it was a different person in the conspiracy.
- RULE: When declarations against criminal D’s exculpate the accused -> must
show corroborating evidence to establish trustworthiness of declarant.
- Holding: Out-of-court declarant’s statements are against his interest –
because he’s admitting his knowledge of the crime, but on the other hand, it
was said over a game a cards, so he didn’t think it would be used against
him. Even if we accept that this statement is against his interest, we need
corroborating evidence to show trustworthiness. Court finds that it was
sufficiently against his interest .
- Note: **Advisory Committee added the requirement of establishing
trustworthiness to accommodate the common law distrust of confessions to
exculpate the accused**
- Note: Some statements are not expressly self-inculpatory, but CAN be
deemed self-inculpatory - IF they show knowledge of certain details of a
crime that an innocent person would not know.
 Case: Williamson v. US (1994) - (Each statement must be sufficiently against
interest as evaluated in its context)
- Facts: Harris found in possession of cocaine & said that it belonged to
Williamson (D) & Harris was supposed to deliver the cocaine to him. Trial
court admitted Harris’s statements against D.
- RULE: Even if a narrative is generally against the declarant’s interest,
statements within it, that are neutral as to his interest, do NOT fit the
exception under FRE 804(b)(3).
- Rationale: Much of Harris’s statements did not implicate him even though
he is showing his knowledge of the conspiracy, so they were not necessarily
against his interest. Under 804(b)(3) the main question is whether the
statement was against the declarant’s penal interest. Only admit statements
that are actually against interest when they are contained within a broader
 HYPO – (White House intern tells her mother “I had sex with the president”. Later,
the intern & President are prosecuted for perjury on the grounds that during a
deposition, they lied under oath about having sex.) - On that foundation alone,
the intern’s statement to her mother is….?
- Admissible against the intern as an admission of party opponent (Doesn’t
have to be against her interest - because anything she says can be used
against her) (801(d)(2)(A))
- If intern is available -> could be admissible against the President.
- If intern unavailable -> NOT likely admissible as a declaration against interest
– because it is not sufficiently against her legal interest.
 Under CA law - the statement would be admissible – because: CEC
1230 includes statements against social interest.
 Case: Green v. Georgia (1979) - (3rd party’s inculpating statements, that
exculpates D, ARE admissible)
- Facts: Green (D) & Moore were convicted of rape & murder in separate
trials. Green tried to introduce statements of Moore indicating that he had
shot the victim, not Green. Trial Court refused these statements as the
Georgia hearsay rule did not allow admission of declarations which are
against penal interest of declarant.
- RULE: The hearsay rule may NOT be mechanically applied to exclude critical
evidence at a criminal D’s trial in violation of the D’s due process rights.
- Rationale: Exclusion of Moore’s statements is a violation of Green’s due
process rights. The statements WERE highly relevant & reliable, as they
were made spontaneously and he had not motive to say them.
 CEC 1230 - California rule considers "against interest" to be:
- Contrary to pecuniary or proprietary interest
- Risk of civil or criminal liability
- Render invalid a claim by him against another
- Risk hatred, ridicule or social disgrace.
 HEARSAY EXCEPTION - DYING DECLARATION - FRE 804(b)(2) - Statement Made Under Belief of
Impeding Death:
 In prosecution for homicide, or in civil action, a statement made while the declarant was
believing his death was imminent & concerning the cause or circumstances of what the
declarant believed to be impending death.
 Foundation Requirements:
o (1) Declarant Unavailable
o (2) Offered in a homicide or civil proceeding
o (3) Imminent Death - Declarants made statement while believing his death was
o (4) Statement Relates to Death Circumstances - Statement must concern cause or
circumstances of what declarants believes to be impending death.
o (5) Personal Knowledge of Death Circumstances - Declarant must have some personal
knowledge of the circumstances
 Keep in Mind:
o Declarant does not have to die, but just have to believe death is imminent [belief in
death, not the actual death itself]
o Does NOT apply to non-homicide criminal proceedings
o Applies in civil cases also
o Limited-very strict limits to allowing this into exception
o Can maybe get these statements in under another rule, might not be as difficult
[excited utterance, state of mind, medical treatment]
 Rationales:
o Secular - Sincere/trustworthy there is not a very much reason to lie (not much to gain);
necessity if the victim did die.
o Religious - Was to tell the truth before die out of fear of God (State v. Jensen)
o Assume that these types of statements will be more reliable that other types of out of
court statements, and because they are dead they cant testify
o An intuitive appeal to heading a persons last words, especially if they are identifying
their killer
o If homicide is involved, the scales weigh in the importance of admitting the statements
 State v Jensen (Wisconsin Circuit Ct. 2008) (Pg. 316)
o Jensen (D) charged with murdering his wife by poisoning her. Prosecution entered a
letter as a dying declaration, written by wife, which she gave to a neighbor and asked to
give to the police if something happened to her. It stated she feared for her life and
would never commit suicide because she loved her children.
o RULE: a dying declaration must be made when the declarant’s death was Imminent &
must concern the causes & circumstances of her death.
o The issue is question, is whether she believed her death was imminent. She could have
withdrawn the letter at any time prior to her death, there is no doubt that she feared
she would die & purposely left the letter to be delivered to the cops. This fulfills the CL
standard of a dying declaration & should have been admitted.
 HYPOS on FRE 804(b)(2):
o Duke is accused of murdering Tim. Police officer testified - “I went to the hospital and
asked Tim what happened and he told me Duke shot him.”
 Inadmissible -> victim has to believe death is imminent (Just because he is shot
doesn’t mean he is dying.)
o A proponent seeks to lay the foundation by offering the cops testimony that she went
to the victims bed & said “Tim, you’re dying.” Is the cop’s statement to Tim hearsay?
 CAN be offered to show the effect on the hearer (to show Tim he was dying.)
 104(a) Judge Decides To Consider Supporting Evidence - Suppose the only
evidence that Tim was aware of the imminence of death is 2nd hand hearsay that
doesn’t fit an exception. If the judge finds it convincing -> she CAN use it as a
basis – because she is NOT bound by rules of evidence under 104(a).
o Police officer testifies that Tim said “Officer, I have 2 things to say. First, I am aware of
the imminence of death, and 2nd, Duke shot me.”
 Admissible -> IF the judge is convinced that he was aware of imminence of death
o In civil action to recover money owed to Tim, on his death bed Tim said “I am aware of
imminence of death, and Buzzy never paid back the 50,000 he owed me.”
 Inadmissible -> Under 804(b)(2) – it has to be about the cause & circumstances of
the death – (Possibly he could be motivated to identify the correct person if they
are the cause of death.)
o Tim starts his car, it explodes & he says “Oh my god, I’m dying; Duke killed me” and dies
immediately, offered to prove that Duke set the bomb, the statement is...?
 Likely NOT Admissible under Dying Declaration – because: he has no personal
knowledge that it was Duke.
 But likely admissible - CAN admit it Not for its truth, but to show a bad
relationship between Tim & Duke.
 Also, its an excited utterance.
 Case: R. v. Perry English Case (1909)
o Facts: This was a murder case arising out of a death caused by an abortion. The victim
said to her sister, after hearing a doctor say that she might die at any moment, “Oh
Gert, I shall go, but keep this a secret.” She then described how the defendant
performed an abortion on her.
o Holding: declarant must have a “settled hopeless expectation of death” that is
“imminent” or within a “very short distance.” The Court declined to endorse the
statement that “if he thinks he will die tomorrow it will not do.”
 Case: State v. Williams 67 N.C. 12 (1872)
o Facts: Deceased named the killer, though he did not see him. Further the deceased also
said “I don’t know what those poor creatures shot me for; it was X who shot me,
though I did not see him”
o RULE: In a prosecution for homicide or in a civil case, a statement that the declarant,
while believing the declarant’s death to be imminent, made about its cause or
o Reasoning: Already don’t like hearsay, and here you have someone on trial based off a
statement by someone who is now unavailable, and the declarant never saw the
murderer + the declarant did not observe anything to identify the perp [personal
knowledge issue]; yet being asked to use the statement to convict someone of murder-
must be limits; only admissible to the extent only so far that would be allowed if the
person was available/not dead
 Don’t allow guesses, don’t allow surmises, don’t allow the expressions of merely
an opinion or belief
 Case: Garza v. Delt Frat Louisiana (2005)
o Facts: Garza wrote a suicide note, then killed herself the next day. In the note, she explained
her suicide by describing events that occurred at college, including rape by a fraternity member.
Her parents sued the fraternity and the university, claiming that she had not been adequately
protected. The issue on appeal was whether the trial judge erred in admitting her suicide note.
o RULE: A statement made by a declarant while believing that her death was imminent,
concerning the cause or circumstances of what she believed to be her impending death
is not excluded by the hearsay rule if the declarant is unavailable as a witness.
o Reasoning: Factor in the length of time between when the statement was made and
the death; furthermore, the statement must also relate to the cause or circumstances
of the declarant death; also the written words indicated an awareness of her impending
death. While most jurisprudence involves dying declarations made after wounds have
been inflicted on a declarant by a third person, but there is no requirement in Art. 804
B(2) that a would or injury be inflicted prior to the making of a dying declaration. Nor
does Art. 804 B(2) require that the death be by the hand of a third party.
 CEC 1370 - Special Exception to the hearsay rule
o Requirements:
 Unavailability
 Statement about physical injury or threat
 Statement made at or near the time
 Statement is trustworthy
 Statement is in writing or made to law enforcement or medical personnel
 Forfeiture of Objections
o (1) Out-of-Court Misconduct - Making a witness unavailable for the purpose of making
them unavailable (judge makes this determination)
 FRE 804(b)(6) - Forfeiture by Wrongdoing - A statement that is 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 – IS admissible (NOT
excluded by hearsay rule)
 Case: Giles v. California (2008) - (Prevention from testifying must be a murderer’s
primary purpose in order to forfeit confrontation clause rights.)
- Facts: Giles killed his ex-girlfriend who had previously made statements to
the police about domestic violence report.
- RULE: Forfeiture by wrongdoing exception only applies to situations where
the defendant causes the witness' absence with the intention of preventing
that witness from testifying at trial.
- Reasoning: He did NOT forfeit his right to the confrontation clause because
his motive in killing the witness was NOT to prevent her from testifying. The
absence of a forfeiture rule covering the conduct of murder would create an
intolerable incentive for defendants to bribe, intimidate or kill witnesses
against them.
- Note: This case gives the Court an opportunity to expand on its decision in
Crawford and to apply it to a situation where the wrongdoing that kept the
witness from appearing in court was not motivated by a desire to prevent
the witness' testimony.
o (2) Fighting Fire with Fire - Opens the door - when one party puts in inadmissible
evidence & opposing party fails to object -> they have forfeited their right to object.
 But IF NOT feasible to object & damage is already done (highly prejudicial) -> court
MAY allow the adversary to respond with otherwise inadmissible evidence to cure
o (3) Failing to Make Objection - Waives it.
 Rationale: if someone is trying to hinder a witness, the testimony is likely truthful

FRE 801(d)(1)(C) – Prior statement by witness that is “one of identification of a person made
after perceiving the person.”
 A statement is NOT hearsay (and IS admissible) - IF [3]
o (1) the declarant testifies at trial;
o (2) is subject to cross examination -AND-
o (3) the statement is one of identification of a person made after perceiving that person.
 Rationale - Prior identification made after perceiving the person is more reliable than court
room identification because there are more suggestions & intimidating conditions in a in
court room (less likely the witness was affected by a bribe or threat)
 Foundational Elements:
o (1) testifies in court;
o (2) subject to cross examination;
o (3) statement of identification
 Statement of identification CAN be made at lineup, photo display, or prior hearing
 Identification CAN be admitted at trial by the declarant himself or another witness
discussing their identification – IF the declarant testifies.
 Hypo - (After the robbery victim testified about picking Becky out from a lineup, the officer
testifies that he saw the victim point to Becky and say “she robbed me”.
o Admissible -> because declarant testified, subject to cross examination, and statement
is one of identification.
 Hypo - Same case - BUT robbery victim identifies Becky at lineup & dies before trial. - Can the
police officer testify about the identification at the lineup?
o NOT Admissible -> it’s necessary that the declarant testify at trial.
 Case: US v. Owens (1988) (There is NO constitutional guarantee of effective cross
o Facts: A correctional counselor at a prison was attacked & at the hospital, he identified
Owens as the attacker, but at cross examination, he couldn’t recall seeing the attacker.
o RULE: Admission of out-of-court statements of a declarant identifying a person does
NOT constitute a violation of the confrontation clause or hearsay rule, even if the
declarant later testifies to lack of memory of his own statement
o Rationale: The confrontation clause of the 6th amendment guarantee the right to cross
examine a witness, but does NOT guarantee effective cross examination. As long as the
D has the opportunity to bring out matters such as the witness’s bad memory, the
confrontation clause is satisfied.
 Here - Foster WAS available for cross examination & his statements DON’T violate
hearsay rule due to subsequent memory loss because under 801(d)(1)(c), out-of-
court identifications are preferable to courtroom identifications (because as time
goes on a witness’s memory will fade and his identification will become less
 FRE 803(5) - Recorded Recollection:
o When the declarant is available as a witness, but has insufficient memory about
something about which he once had knowledge, to testify accurately, can use
statements made or adopted by that witness to refresh his memory to enable him to
 Foundational elements
o (0) declarant must be AVAILABLE
o (1) recorded
o (2) based on personal knowledge
(3) testify that present recollection is insufficient
(4) made or adopted by the witness (themselves)
(5) when memory was fresh
(6) accurate - shown to reflect knowledge correctly
 Rationale/Purpose: Can use documents to refresh the witnesses memory, as opposed to
asking leading questions. And a writing recording an event near to its time reduces memory
risk so it is trustworthy.
 Procedure: Have to lay the foundation before refreshing memory by having witness testify
that he does not recollect, give report to witness, he reads it, witness must testify that if his
memory is refreshed and report is accurate, and then take back the document and continue
to question.
o Written documents are preferable - in the case where you don’t have one, could ask
the judge to ask a leading question for the purpose of recollection
 Adams v. The New York Central Railroad Co. (1961 OH) (Pg. 332) – (CANNOT use statement as
past recollection record if it doesn’t refresh the witness’s memory)
o Adams (P) sued for injury damages & D tried to prove the injuries were the result of a
previous accident by introducing testimony of an insurance agent who had interviewed
P when he was in the hospital. D tried to introduce the report prepared by the
interviewer under the recollection exception, but it did not refresh the witness’s
o RULE: Written statement prepared by a witness may NOT be admitted as a past
recollection recorded - IF the witness’s memory is not refreshed by the statements.
 Case: Baker v. State (1977) – (CAN use documents that were not written by witness himself -
IF adopted by the witness)
o Facts: Baker (D) was convicted of murder and robbery and tried to introduce a police
report prepared by another officer to refresh the witness’s memory on the grounds
that the officer did have personal knowledge of the report.
o RULE: A party CAN use any kind of memory aid (including a report prepared by another
party) to refresh a witness’s memory.
o Rationale: The report is merely a stimulus to jog the cop’s memory & is NOT itself
admitted into evidence. Here - the effort to jog the memory of the police witness was
unduly and prejudicially restricted.
 PROCEDURE: _Refreshing_Recollection/ Present Recollection Refreshed:
o FRE 612: Examiner may show anything to a witness to jog the witnesses memory about
a matter which they once had knowledge.
 Opposing party can inspect the writing and cross examine the witness on the
 Writing itself is not admissible as evidence unless the other party introduces it.
o This is different from 803(5) because here the evidence is the witness’s testimony,
whereas under 803(5) the evidence is the writing
o So -> FRE 803(5) requires a foundation to show the witness has knowledge and adopted
the writing.
 <<< INSERT SLIDE ON "Refreshing memory compared to past recollection">>>
With refr memory, not putting into evidnce so don’t need hearsay exception.
With past recoll, witness can read form in bc it’s coming into evidence.
<<<<TODO: split this section into refreshing rec and present recollection>>>
 FRE 803(6) - Record of Regularly Conducted Activity (“Business Record Exception”)
o Report or data in any form, made by a person with knowledge and “kept in the course
of a regularly conducted business activity and it was the regular practice of the business
activity to make” the report.
o (1) Recorded;
o (2) Deals with act of event, condition, opinion or diagnosis (CA rule doesn’t cover
o (3) Kept in regular course of business
o (4) Business has regular practice to make that record/regularly conducted business
o (4) Made at or near the time or event or condition;
o (5) Comes from person with knowledge;
o (6) Person making record was under business duty.
o (7) Trustworthiness
 Note: If all are satisfied -> It IS admissible – (UNLESS source or circumstances indicate lack of
 Rationale: Businesses rely on records to be accurate & businesses are creatures of habit ->
so these records are reliable.
o Rely on the record, or witness who has knowledge of how it is made – because it would
be inconvenient to call all employees who had produced the record.
o Does NOT cover 3rd party statements - because they don’t have a motive to be
 What does this add to past recollection recorded?
o If the witness is familiar with the way the business is run & how the record is made ->
this information can be helpful - even if the witness does not have knowledge of the
o This streamlines business's ability to testify; don't have to call a bunch of people who
might have contributed to the record.
 Business Duty Rule: … if kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make the … record …
 Case: Johnson v. Lutz (1930) - (Source of information must come from someone under
business duty)
o Facts: P offered police report of an accident based on 3rd party statements. [civil case]
o RULE: Statements of 3rd parties contained in a written report prepared during the
regular course of business may NOT be admitted under business exception
 A business record of an event is admissible if it is made by, or from information
obtained from, a person with knowledge of the event in the regular course of
business, and it is the regular course of business to make such a record at the time
of the event
o Statement excluded –because hearsay within hearsay in business record is NOT
Admissible when original declarant did not have business duty to contribute to the
record. The report must be prepared by a party with a duty or obligation to prepare
the reports.
 Case: US v. Vigneau (1999) - (Forms must be filled out by someone with a business duty)
o Facts: To show Vigneau (D) sent money as part of a drug transaction, prosecution tried
to admit Western Union money forms filed out by with personal information that would
id sender, not Western Union employer D (created out of court statement, offered for
truth of the matter)
o RULE: The business records exception does NOT embrace records completed by a party
who is not part of the business, if offered for their truth. To be admissible under the
business records exception to the hearsay rule, the source of the information in the
record must be trustworthy.
o Rationale: When an employee regularly makes certain records, the regularity of the
procedure with the business incentives helps insure the accuracy of the records. The
forms here were made by a stranger to the business so do not serve this purpose and
were admitted to prove the sender’s identity - the sender name, address, and
telephone number on the forms should not have been admitted for their truth.
 United States v. Duncan (5th Cir. 1990) (Pg. 345) - (Admission of Business Records Falls under
FRE 104(a).)
o Ct. admitted records of insurance companies containing medical records and
statements of doctors were admitted to show D defrauded insurance companies.
o RULE: business records prepared from other admissible business records ARE Permitted
under the business exception rule.
o The medical records were w/in the scope of the business records exception & were
admissible independently as business records of the hospital. They were prepared
routinely & relied upon by hospitals & insurance companies in the course of business,
so they were reliable & trustworthy. There is no requirement that the witness be able
to testify personally to the accuracy of the record.
 Williams v. Alexander (C of A – N.Y. 1955) (Pg. 347) - (Business Must Have Incentive to be
Accurate About Record)
o Williams (P) a pedestrian, was hit by Alexander’s (D) car, which was hit from behind by
another car. D tried to introduce P’s hospital records.
o RULE: it is NOT within the regular course of a hospitals business to make a detailed
record of information not relevant to treatment of patient
o A report falls within the business records exception – IF it is made during the course of
business for the purpose of assisting in carrying on that business. Description of the
cause of injury is NOT relevant to the hospitals business, and is not relied upon in the
diagnosis and treatment of the patient.
 HYPO - (Buzzy sues Wanda, a political opponent for defamation, and claims Wanda spread
false rumors that he was a cocaine addict. He hired a service that in the regular course of its
business did a nexus search of major newspapers. The service used search words “Buzzy
cocaine addict” & the search indicated that stories began appearing only after the date on
which Wanda spoke to reporters.)
o Inadmissible – because: the report was prepared for litigation (under Lewis v. Baker
(1975) that is not always a problem) - Could probably prove there are errors that not all
newspapers were searched.
o Search terms are a problem – because they are not tailored to retrieve everything/ not
conclusive, newspapers may use terms drug user instead
 Case: Hahnemann Univ. Hospital v. Dudnick (1996) - (No special foundation necessary for
computer records / opposing side has burden to show untrustworthiness of a report for it to
be excluded.)
o Facts: Hospital (P) tried to introduce evidence of the computer printout of the bill that
was authenticated by the custodian of records of the hospital to show outstanding bill.
o RULE: Parties challenging the admissibility of computerized records must establish
their unreliability.
o Rationale: There is no reason to believe a computerized business record is wrong
unless the opposing party can show evidence otherwise.
Case: Potamkin Cadillac v. B.R.I. Coverage (1994)
o Held: Record must be derived in normal course of business (Here - spot checks cast
doubt on trustworthiness)
 Documents Prepared for Litigation:
 Case: Palmer v. Hoffman (1943) - (Records contents must be trustworthy & made in regular
course of business.)
o Facts: A railroad engineer made a report after an accident injuring Palmer.
o RULE: An accident report, that is not directly related to the conduct of business, is NOT
admissible under the business records exception.
o Rationale: A report must be made in the regular course of business.
 Here - the engineer had prepared the report for litigation purposes only. The
reliability stems from the fact that the record is about day to day operations not
because it is routinely prepared.
 Case: Lewis v. Baker (1975) - (If a record was made immediately after the event and
prepared by someone in their course of business -> a court MAY find it to be trustworthy.)
o Facts: Lewis (P) was injured and railroad offered evidence of a personal injury report by
an employee of the railroad, who was not involved in the accident.
o RULE: A report kept in the regular course of business, IS admissible when prepared by a
party not involved in the accident.
o The reports in question satisfy the business record exception - because they were
prepared in the regular course of business & were written at a reasonable time after
the accident - accidents were regularly reported and investigated by individuals not in
the accident.
 No motivation to create documents to “CYA”
 Hearsay within Hearsay:
o Case: Sana v. Hawaiian Cruises - (Every level of hearsay must fall under exception & not
be for the truth of the matter asserted.)
 Facts: Sana (P) was taken to the hospital due w/seizures & went into a coma. P’s
council tried to introduce evidence of an investigation by the D’ insurer of
interviews of his coworkers. [maintenance & cure – compensation expenses for
injury or illness]; trying to prove he became ill while on job
 RULE: For documents to be admissible -> each layer of hearsay must satisfy an
exception to the hearsay rule.
 Rationale: There are several levels of hearsay – P’s own statements ARE
admissible as statements of his then existing state of mind 803(3). Co-workers
statements ARE admissible as statements of a party agent 801(d)(2), as the
coworkers were acting within their scope of employment while they were at work.
The report itself IS admissible as a business record.
- Evidence offered to prove truth of the matter asserted [that P was sick
during employment] hearsay
 Ps statements to his co-workers [admissible]
 Co-workers statements to Investigator [admissible]
 Investigators recorded version of employee statements [writing
something down is hearsay] [admissible]
- Rule 805 multiple layers so need exception, exemption, for each item
 FRE 803(8) - Public Records and Reports:
o Records, reports, statements or data of public officers describing:
 (i) activities of the office,
 (ii) matters of which there was a duty to report (firsthand knowledge required), or
 (iii) factual findings resulting from an investigation, unless the source is
untrustworthy -> does not need to be created in the regular course of business ->
allows lawyers in civil cases to use government reports
o Rule specifically excludes police reports in criminal cases, but if the record is a non-
adversarial matter -> it MAY be introduced.
 What does it add to the Business Records 803(6) exception?
o One-off - Records that are not routinely made (could be first time event occurred)
o No Witness Needed - A witness is not needed to testify that it is a public record
o No Business Duty - They don't have to be under a business duty
 Case: Beech Aircraft v. Rainey (1988)
o Facts: Fatal plane crash. JAG investigating officer’s report included statements of
o RULE: Factual findings CAN include opinions, facts and conclusions under 803(8)(c).
o Rationale: Factual findings from an investigation made under legal authority are
admissible as long as they are trustworthy. Advisory committee does not distinguish
between opinions and facts, so a broad reading of the rule should be taken.
 CC Issues with Public Records
o Case: Williams v. Illinois (2012)
 RULE: Crawford does not bar an expert from expressing an opinion based on facts about a case
that have been made known to the expert but about which the expert is not competent to testify.
 Summary: Cellmark, an outside lab, prepared a DNA profile from semen on a vaginal swab taken
from a sexual assault victim. A testifying expert from the Illinois state police crime lab matched
that profile to the defendant. She used the Cellmark report in forming her opinion but the lab
report was not introduced into evidence. The Cellmark analyst did not testify
 Issue: Whether the CC was violated by allowing the ISP witness to testify that the profile from the
vaginal swab matched the defendant’s profile
 Key Testimony: Testified that 1) there was a computer match between the semen DNA sample
identifying the match as originating from defendant, and 2) that the semen identified in the
vaginal swabs were consistent with having originated from the defendant
 Alito (plurality): Not for truth analysis - - there would have been no problem if the witness had
merely testified that William’s profile matched the profile “produced by Cellmark.” Nobody would
then argue the testimony contained an assertion by Cellmark about the source of the sample, and
there was other evidence that proved that the Cellmark profile came from the swabs taken from
the victim
 The actual testimony - - that the semen from the crime scene swabs matched the profile of the
defendant – was not materially different, assuming that the trial judge did not use Cellmark
statement about the source of the semen for the truth of what it asserted. There was other
evidence from which the trial judge could find that the DNA tested by Cellmark came from the
 Park’s analysis:
- If the ISP analysis had merely testify that the profile in the Cellmark report matched the ISP
profile, then the prosecution would not be using the Cellmark report for the truth of
anything assert in it, provided that . . . there was other admissible evidence that showed
 The sample tested by Cellmark was the crime scene sample, and
 Cellmark produced an accurate profile
1. Evidence that the profile matched: (aside from calling Cellmark) - - very
unlikely that they would mess it up and have it match this defendant
 Plurality’s two independent bases: (4 justices)
- Not used for the truth asserted
 Just being used as a basis for the expert's opinion
- Not created for use against the defendant, but responding to ongoing emergency (finding
rapist out there)
 Thomas concurrence: Didn’t think it was testimonial because it wasn’t formal
 Kagan dissent: (4 justices)
1. They were using the Cellmark report for the truth of what it asserts
2. The argument about not being used to collect evidence against the defendant
has no basis; (solving crime v. gathering evidence against defendant)
2. Possible coalitions after the case: (would have to convince certain
justices to take certain stances, i.e. get Thomas to say formal)
3. Non-hearsay basis for expert + informal = five votes
1. Aka. Non-TOMA + informal
4. No suspect + informal = five votes
5. Primary prosecutorial purpose + formal = five votes
 Sample Problems:
o Hypo: Fingerprint expert testimony, bases conclusion partly on an informal conversation with criminalist
who lifted the print; objection – confrontation clause
 Admissible --
 Possible coalition: no suspect + informal (plurality + Thomas)
o Hypo: Prosecution psychiatrist testifies, rebutting defendant’s insanity defense; based on informal
conversations with people that knew the defendant, that defendant told them “If I get into trouble I can
always use it as an excuse”; objection on CC
 Inadmissible --
- Not offered for truth + informal
 Possible argument: not offered for the truth, only for the basis of her findings (plurality in
Williamson, but harder case here to make this argument) + informal
o Hypo: Formal autopsy report prepared by a medical examiner who died before trial is offered against a
criminal defendant. Objection on CC
 Ruling depends - -
 if they didn’t suspect foul play, the primary purpose wouldn’t be for use in future prosecution
(many other possibilities)
 If the medical examiner had another primary purpose (with another purpose being future
prosecution), it would be non-testimonial
o Hypo: Lab report offered against an athlete charged with perjury after testifying that he did not use
steroids; objection on CC
 Admissible - the primary purpose of the report was not for prosecution.

Case: Stroud v. Cook
o RULE: judgment in a prior misdemeanor conviction is not admissible (felonies are)
 FRE 807 - Residual Exception
o (Fallback exception for particularly trustworthy statements not covered in 803/804)
o Statements NOT covered by FRE 803 or 804 are NOT excluded by hearsay - IF
 (1) they have equivalent circumstantial guarantee of trustworthiness
 (2) offered as evidence of material fact;
 (3) more probative on point for which offered than any other evidence;
 (4) general purpose of FRE & interest of justice are served by the admission of the
statement; AND (assumed if you have trustworthiness)
 (5) notice is provided to opposing party
o Requirements: Equivalent trustworthiness, best evidence on point, notice given to the
other side.
o Examples of guarantees of trustworthiness:
 Impartial
 Fresh in memory
 Not made in preparation of litigation
 Definite and specific description
 Corroboration
 Case: Turbyfill v. International Harvester (1980)
 Facts: After car explosion, mechanic immediately asked to prepare an account of what
happened. He dies before trial, and D offered into evidence the account he prepared.
 RULE: A hearsay statement MAY be admitted into evidence under FRE 807 - IF it bears
adequate circumstantial guarantee of trustworthiness .
 Rationale: The mechanic’s account of accident was prepared when it was fresh in his mind &
was introduced to prove a material issue at trial. It wasn’t in the regular course of business,
he is dead - so cant adopt statement on the stand, court says it’s like a past record
recollection as it is trustworthy and was fresh in his mind when he wrote it.
 “Near Miss” Theory: If proffered evidence is the type that would be admissible under an FRE
provision -> it is NOT admissible under other grounds - IF it can’t fit under the provision covering
the evidence in question.
 Ex: if something is generally a business record, but does not qualify, it is a “near miss” and
cannot be let in under FRE 807.
 Zenith Radio v. Matsushita Electrical (1980) (Pg. 392) - (Near Miss Theory Applies in Case
Beyond Hearsay Exceptions – Ct. Must Assess Congressional Intent Separately in each Case)
o Held: Residual hearsay exception should be used very rarely, & only in exceptional &
unanticipated circumstances not covered by particular exceptions
o Here - the P’s evidence did not fall under the residual exceptions & is inadmissible
under the “near miss” doctrine, the evidence cannot almost be of a type that the rules
 Most Ct’s do NOT follow this, but rather hold that - IF the evidence does not meet another
exception, but DOES satisfy FRE 807- Thus, it IS Admissible.
o In Britain, they had done away with the admissibility of hearsay evidence in civil proceedings
[its admissible]
 U.S. does NOT use narrative testimony – because: we want to focus the witness’s attention
and use specific questions to allow the opposing side an opportunity to object.
 Direct Examination - General prohibition on leading questions in direct examination –
because they are too specific and suggestive. (NO Leading Questions)
 Cross Examination - on cross, CAN ask leading questions to help control the witness. The
attorney and the witness have divergent interests, so leading questions don't allow the
attorney to be providing the testimony
 Susanna and the Elders- separated the witnesses, they are invoking the Rule 615,
sequestration of witnesses; also means that after the witness testifies they cannot brief the
witness who has not testified or already testified
 FRE 611(c) - Leading Questions:
o Leading questions should NOT be used on direct examination - except as necessary to
develop the witness’s testimony.
o Ordinarily, the court SHOULD allow leading questions on cross-examination.
o Court SHOULD allow leading questions when a party calls a hostile witness, an adverse
party, or a witness identified with an adverse party
 Common Objections:
o (1) Asking Argumentative Questions;
o (2) Assuming Facts Not in Evidence;
o (3) Misleading Questions.
 FRE 607 - WHO May Impeach a Witness:
o Any party, including the party that called the witness may attack the witness’s
 Note: In CL, a party could not impeach their own witness
o HOGAN RULE: The prosecution . . . may not call a witness it knows to be hostile for the
primary purpose of eliciting otherwise inadmissible impeachment testimony, for such a
scheme merely serves as a subterfuge to avoid the hearsay rule.
o Case: US v. Hogan (1985) - (Calling a witness to impeach with otherwise inadmissible
evidence is NOT permitted)
 Carpenter confesses in Mexican jail that the Hogan’s were linked to the drugs.
Once in the US under deposition, he changes his story & denies the Hogan’s
involvement, claiming he only confessed to get out of Mexican jail. The
government did not need to call him to the stand, because they already had his
testimony, & only did so to elicit an otherwise inadmissible statement from
Carpenter, made in the Mexican jail.
 Held: When prosecutor knows the witness it calls will be hostile, it is NOT
permissible to call the witness for the purpose of eliciting otherwise inadmissible
impeachment testimony.
 Reasoning: The government tried to impeach the witness with statements that
were not admissible as substantive evidence, so there was a danger of the jury
hearing the information. The witness had already testified twice under oath, in a
related case, so the government was aware of what he would say under oath.
- need to ask for limiting instruction bc the judge must give it, otherwise the
other side can use it for the truth in addition to for impeachment (+whatever
else) Rule 105; it has not been limited so it can be used for whatever (in TX,
and basically CL in fed.)
- “strawman impeachment” – know that they are not going to say what you
want on the stand and you try to impeach them with prior inconsistent
statement under 801(d)(1)(A); but probably does not pass muster (typically
comes up in domestic violence cases)
- how else do you get it in?
 co-conspirator statement – not co-conspirator; must be offer
 statement against pen___ interest- no
 an opposing party – for purposes of evidence rules, government is not
a party in criminal cases (so the above are automatically not applicable
under 801(2)
 look to 608 to when you can use character evidence or in what form
you can use character evidence to impeach the other side [read 608
very carefully]see 405: reputation or opinion, specific instances of
 Exception - CAN bring in prior inconsistent statement - IF it’s admissible under
801(d) – because it would NOT be hearsay -> without, there’s NO Hogan problem.
- Example: Grand jury testimony.
- Its simply admissible as SUBSTANTIVE evidence
- No limiting instruction is needed.
- No Hogan problem.
- No CC problem (witness is on the stand and can be crossed.)
- FRE 801(d)(1)(a) - Inconsistent Statement - Statement is NOT hearsay – IF:
the declarant testifies, is subject to cross examination and the statement is
inconsistent with the declarant’s testimony AND was given under oath at a
trial, hearing, deposition or other proceeding.
o California allows ALL inconsistent statements as substantive evidence, regardless of
whether or not they were made in a proceeding.
 So no Hogan problem in CA
 Can always use statements by witness after they recant.
 CEC § 1235: Prior inconsistent statements of a witness are admissible as
substantive evidence. (VERY LIBERAL ADMISSION)
 5 Types of Impeachment:
o (1) Contradiction (External)
o (2) Character
o (3) Capacity
o (4) Self-Contradiction (Prior Statements)
o (5) Bias
 Impeachment Summary
o (1) Contradiction (External)
 If collateral, no. Oswalt. Caveat: FRE 403.—stuck with whatever is said, you
cannot impeach; but if the extrinsic proof evidence could be put in (testified and
you want to show he is lying in this case; or even if they did not testify)
o (2) Character
 Prior Convictions, yes, if FRE 609 satisfied.
 Other specific acts - no. FRE 608(b).
 Reputation or opinion - YES.
o (3) Capacity
 YES!
o (4) Self-Contradiction (Prior Statements)
 If collateral, no. PLOG Essay. Caveat: FRE 403.
o (5) Bias
 YES! Abel
o (1) Impeachment by Contradiction
o (2) Impeachment by Attack on Witness’s Character for Truthfulness: Witness has
reputation for untruthfulness / CAN use prior bad acts - See FRE 608 and ????
 Prior Bad Acts
 Prior Convictions
 Bad Reputation for Truth And Veracity
o (3) Impeachment by Lack of Capacity / Attacking Mental Health - has medical condition
affecting memory or ability to relay information (Example: wears glasses and wasn’t
wearing them on the occasion in question)
o (4) Impeachment by Prior Statements to Impeach or Rehabilitate - Self-
Contradiction/Prior Inconsistent Statement: Witness contradicts himself / attacks
witness credibility for impeachment only.
o (5) Impeachment by Showing Bias/Prejudice - Witness has relationship with one of the
parties (i.e. financial or personal involvement)
o A witness CANNOT be impeached with extrinsic evidence that contradicts the witness
on a collateral Issue.
 “Collateral Issue” – An issue lacking independent relevance except to contradict
the witness.
- TEST: Could the fact have been shown in evidence for any purpose
independently of contradiction?
 “Extrinsic Evidence” - testimony of another witness or evidence other than the
witnesses own words during cross examination.
- Court prefers to impeach through cross-examination than by extrinsic
 Case: State v. Oswalt (1963) (CANNOT use extrinsic evidence to impeach on
collateral matter)
- Facts: In presenting alibi, D called restaurant owner in Portland who said the
D had been there almost every day. A police detective said he spoke to the
defendant in Seattle during the time of the robbery. Extrinsic evidence was
testimony of police officer saying Oswalt was in Seattle a month ago.
- RULE: Extrinsic evidence is not admissible to impeach by
contradiction on a collateral fact.
 Reasoning: A witness CANNOT be impeached upon matters collateral to the
principle issue at trial. (This avoids undue confusions of issues and prevents
unfair advantage over a witness unprepared to answer certain questions.)
 Note: Oswalt NOT codified by FRE, but cited by most courts. A similar concept
may be found in the FRE under…
 FRE 608(b) - Prohibition on extrinsic evidence IF the purpose is to show
character for truthfulness.
 FRE 403 - Waste of time, prejudicial and NOT probative .
 CAN Impeach a Witness Through Their Own Statements:
 This is NOT extrinsic evidence (even though it may be collateral)
 Case: US v. Copelin (1993) (Apply FRE 403 / CAN impeach witness credibility with
o Facts: In cocaine case, Copelin (D) claimed he only knew cocaine from TV. It
was permissible to impeach D by contradiction by showing evidence of D’s
positive cocaine tests to show D lied about his knowledge of cocaine.
o RULE: A party may impeach the credibility of a witness based on
contradiction by introducing evidence of the party’s prior bad acts
o Reasoning: The evidence IS relevant – because it contradicts his earlier
statement that he had never seen cocaine. D said the evidence is not
admissible because a witness cannot be impeached on a collateral issue, but
the evidence at issue was his own cross examination -> so, it was NOT
 Witness MAY be Impeached by Showing their Bad Character for Untruthfulness.
o Rationale - a person with untruthful character is likely to be untruthful on the
 Three Subtypes of Impeachment by Character:
o Prior Bad Acts
o Prior Convictions
o Bad Reputation for Truth and Veracity
 FRE 608(a) - Opinion and Reputation Evidence of Character:
o A witness’s credibility MAY be attacked OR supported by testimony about the
witness’s reputation for having a character for truthfulness OR untruthfulness, -
OR - by testimony in the form of opinion about that character.
 BUT - evidence of truthful character is admissible ONLY AFTER the witness’s
character for truthfulness has been attacked.
o Foundation - before reputation is permitted, a foundation must be laid showing
the character witness knows the witness’s reputation
 FRE 608(b) - Specific Instances of Conduct- (that have NOT resulted in conviction)
o Extrinsic evidence is NOT admissible to prove specific instances of a witness’s
conduct to attack or support their character for truthfulness.
 Example: CANNOT call another witness to testify about first witness’s
misconduct - have to take first witness’s answer
o But at the judge’s discretion - Specific acts MAY be inquired into during cross-
exam concerning whether they are probative of the character for truthfulness or
untruthfulness of witness on cross OR another witness they’ve testified about.
 Exception - IF the D has testified, and the evidence is a specific act that is
relevant to an element of the crime/ultimate issue (intent, etc) -> then
extrinsic evidence CAN be admitted.
o Case: US v. Owens (1985) - (Judge must limit details of crime to prove
untruthfulness – IF similar to the crime on trial for now.)
 Facts: On cross in murder case - the government showed D had omitted
information about his prior convictions for marijuana possession, assault &
battery of his 2nd wife & carrying a pistol without a permit. The prosecution
claimed this evidence was introduced to challenge the truthfulness of him as
a witness.
 RULE: A party MAY impeach a witness by eliciting on cross-examination
admission to a prior act of intentional falsehood.
 Analysis: Here - the evidence was NOT used directly to show his bad
character, the prosecution tried to impeach him by showing his admission of
intentional falsehood under oath on other occasions.
o Case: US v. Drake (1991)
 Facts: In a fraud case, D stated he majored in psych and testified on cross
that he had a degree in psych and denied recollection of being expelled.
 RULE: Court upheld right to attack witness character through cross-exam,
not admit extrinsic evidence.
 Rationale: Drake WAS properly impeached on his educational background –
because: cross-exam questions, alone, do NOT constitute extrinsic evidence.
The cross examination referred to extrinsic documents not in evidence, but
his own testimony WAS sufficient to call his character into question.
 Note: CANNOT read from extrinsic evidence about specific instances while
asking the witness about the information on cross – because it IS hearsay &
assumes facts not in evidence.
 Note: IF you have extrinsic evidence that the hearsay declarant was
convicted of fraud -> you CAN admit evidence under 609(a)(2) – because you
CAN impeach an out of court declarant the same ways that you can impeach
a witness.
 See examples on page 510
 Impeachment by Using _Prior _Convictions to Attack Witness’s Credibility:
o FRE 609(a)(1) - To attack the character for truthfulness of a witness… evidence
that a witness other than the accused has been convicted of a crime CAN be
admitted (subject to FRE 403) - IF “the crime was punishable by death or
imprisonment in excess of 1 year” – AND - the judge finds that the probative value
outweighs the prejudicial value.
 Balancing Test Factors:
- (1) Impeachment value;
 Not dealing with crimes of deceit under 609a2, we’re dealing
with serious felonies . . . some felonies have more impeachment
 Larceny more dishonorable than assault, for example
- (2) Remoteness - how long ago it was;
 If conviction more than 10 years old, special rule. But even if less
than 10 years old, we still wanna know how recent. Start
counting 10 years when he gets out of prison
- (3) Similarity (better if its less similar to crime being charged with now);
 If impeach value, similarity is strike against it. More similar, more
danger bc jury will use the evidence for an improper purpose
(here the only proper purpose is to show that the witness will lie
on the witness stand).
- (4) Importance of declarants’ testimony; and
 If crucial, judge should not keep off the stand.
 This is almost always settled before trial, rather than waiting until
trial and objecting.
- (5) Centrality of credibility issues - if he said/she said situation -> there
is an argument to let it in to allow jury to make credibility of
 The more central credibility, the more likely it’ll be he said she
said case.
 This fifth factor cancels out the fourth factor . . .when crucial,
then credibility is more central.
 Note - IF prejudice & probative factors are EVENLY BALANCED:
- To impeach a witness -> it IS admissible under 609(a)(1). (Must be 50%
or more Probative vs. Prejudicial) If 50%, doesn't outweigh????
- To impeached the ACCUSED -> it is NOT admissible under 609(a)(1) –
(must be 51% or more Probative vs. Prejudicial)
o FRE 609(a)(2) - To attack the character for truthfulness of a witness: evidence that
any witness has been convicted of a crime MUST be admitted, regardless of
punishment – IF it was a crime of dishonesty of false statement.
 Examples: Fraud, Perjury, Embezzlement, & Crimes Involving Deceit (mere
arrest does NOT qualify here)
 Note: IF readily determinable that dishonesty WAS involved in the past
crime -> it MAY be admitted under 609(a)(2).
 Dishonesty must have been "element":
- (1) Judge instructed the jury that deceit was required.
o FRE 609(b) – Time Limit: IF more than 10 years has passed since the witness’s
conviction or release -> the evidence is only admissible – IF the probative value
substantially outweighs prejudice – AND – the proponent gives the other party
written notice of their intent to use the conviction.
 “reverse 403”- not admissible, unless…; going to hurt the defendant,
want to protect defendant
o CA Constitution (Article 1, § 28):
 Felony conviction for crimes of moral turpitude ARE admissible to impeach
the accused - in the discretion of trial judge (Ppl v. Castro)
- Examples of Moral Turpitude Crimes:
 Felony DUI
 Escape
 Flight from a police officer
 Felony indecent exposure
 Negligent discharge of a firearm
 Possession of a firearm by a felon possession of an illegal firearm
 Possession of marijuana for sale
 Corporal injury to a child
 Malicious mischief
 Battery on a police officer
 Felony vandalism
- Not examples:
 Simple possession of drugs
 Involuntary manslaughter
 Negligent child endangerment
 Simple assault
 Examples of crimes that are NOT of “Moral Turpitude”: Simple possession of
drugs, involuntary manslaughter, negligent child endangerment, simple
o The Tilt of the Balancing Test
 <<< add slides about this rule favoring D>>>
o Prior Convictions of a Criminal D ARE Admissible – WHEN:
 D testifies to character, thus putting it into issue (impeachment by FRE 404)
 On cross.
 D put character witness on stand & “Opens Door” (impeachment by FRE 608
of past crimes of dishonesty under 609(a)(2))
 KIPPOMIA evidence, that is NOT offered as character evidence (under
 Sex crimes exceptions to character evidence (under FRE 413 and FRE 414)
o Case: US v. Sanders (1992) - (FRE 609 requires 403 balancing test to admit prior
convictions - even if conviction is more than 1 year)
 Facts: Sanders (D) & Alston charged with assault with dangerous weapon &
claim self-defense. At trial, evidence of prior convictions introduced to
impeach his credibility.
 RULE: FRE 609(a)(1) does NOT allow admission of prior convictions for
impeaching a witness’s credibility - IF the probative value of the evidence
does NOT outweigh the prejudicial value.
 Analysis: Here - evidence of his prior offense was likely to inflame the jury &
prejudice him & the prejudice does NOT have much bearing on whether he
would testify truthfully. Court ruled that the evidence COULD BE admissible
to show intent & concludes it was NOT “harmless error” for his assault
conviction, but it WAS harmless error for his conviction of possession.
- Intent was not at issue in this case, where a judge would likely let
it in under 404(b), but here self-defense [dissent is wrong bc
confused intent with motive]
o United States v. Wong (3rd Cir. 1983) (Pg. 489) - (NO Balancing Test for Crimes of
Dishonesty under FRE 609)
 Wong (D) charged with mail fraud. Evidence was introduced of his previous
convictions for mail fraud to impeach his credibility.
 RULE: Ct. does NOT have discretion to exclude prejudicial evidence that a
witness had previously been convicted of a crime involving dishonesty or
false statement where impeachment of witness credibility concerning the
same is sought.
 FRE 609 does NOT establish a Balancing Test requirement for Crimes of
Dishonesty. General Balancing under FRE 403 is NOT designed to overrule
specific rules of evidence.
- Idaho Supreme Court: prior out of state conviction similar to the
present crime and very prejudicial; court viewed dishonesty as
“disregarding the rights of others” or “disregard of the law” which
will let in any drug crime if in current case is about drugs
 Hypo: steal steaks from a self-service grocery store (convicted of
misdemeanor), and person is witness at a trial where the other side
wants to impeach:
- Come in?
 Dishonesty to take property without paying for it
 False statement- passing cashier without paying for
something is “saying you did not pay for it” so false
- Not come in? under the rule it cannot come in unless it involves
dishonesty/false statement
 If person who wants to impeach witness who had been convicted of
theft, fraud, etc… must look to how the crime must be proved, if yesno
balancing, will be let it
- Prosecutor tries to prove that the theft/fraud involved false
statement with a police report that involved false statements
(statute does not require false statement, but just one way you
can); court said police record is not good enough
o Case: US v. Brackeen (1992) - (Crimes of dishonesty must involve
 Facts: In trial for unarmed robbery, prosecution entered evidence of
Brackeen (D)’s guilty pleas to impeach him under 609(a)(2).
 RULE: Robbery does NOT qualify as a “crime of dishonesty” per se under
FRE 609(a)(2).
 “Dishonesty” has 2 meanings: (1) breach of trust, (2) disposition to defraud
or deceive. Legislative history of the rule defines scope and meaning of
crimes of dishonesty as those involving perjury, false statements, criminal
fraud, or other crimes involving deceit or falsification.
- Crimes of dishonesty or false statements MUST be admitted.
- Crimes punishable by less than one year must be excluded.
- Non-dishonesty crimes with punishment greater than one year MAY be
admitted, subject to a balancing test
- Convictions for crimes of “moral turpitude” ARE admissible to impeach
the accused in the discretion of the trial judge.
- CA Law – examples of crimes that are NOT “moral turpitude”:
 Simple possession of drugs
 Involuntary manslaughter
 Negligent child endangerment
 Simple assault
o Case: Luce v. US (1984) - (D must testify to raise claim of improper impeachment)
 Facts: Luce (D) tried to exclude evidence of his earlier conviction which was
offered to impeach his credibility. D did not testify and appeals the decision
that the trial court did not weigh the probative value of the prior conviction
against the prejudice.
 RULE: D must testify at his trail in order to be entitled to raise & preserve
for review the claim of improper impeachment with prior conviction.
 Analysis: Had Luce testified, the lower court’s decision regarding admission
of prior convictions would have been reviewable. The reviewing court would
have had a complete record before the trial and the possible impact of
impeachment on the jury. Without records, the reviewing court can’t weigh
the probative value of prior convictions against the prejudicial effect. When
a D does not testify there is NO way to know if the prosecution would have
used the evidence of prior convictions for impeachment.
o Case: Ohler v. US (2000) - (D "removing the sting" by revealing a past conviction
before the P has a chance forfeits a right to appeal prior decision that P had the
right to introduce it)
 Extrinsic evidence IS allowed to show impaired perception or medical diagnosis.
o Extrinsic evidence of witness mental health IS admissible - IF relevant to their
ability to accurately perceive, recollect or communicate information.
 FRE 403 – still applies.
 Case: US v. Lindstrom (1983) - (FRE 608(b) does NOT cover witness capacity - extrinsic
evidence of a witness’s capacity CAN be used.)
o Facts: Lindstrom (D) attempted to impeach prosecution witness’s credibility by
questioning her of her psychiatric treatments.
o RULE: Evidence of a witness’s psychiatric condition CAN be admitted to impeach
the credibility of the witness.
o Rationale: The credibility of a witness CAN always be attacked by showing that
his capacity to observe, remember or narrate is impaired. Thus, the witness’
capacity at the time of the incident, as well as at the time of trial ARE significant.
FRE 608(b) does NOT apply - it prohibits traits of character & mental capacity is
NOT a trait of character. Here - the exclusion of this evidence was an abuse of
discretion by denying Lindstrom the opportunity to confront the witness.
 FRE 610 - Religious Beliefs:
o Evidence of a witness’s religious beliefs/opinions on matters of religion is NOT
admissible - for purposes of showing that a witness’s credibility is impaired or
o HYPO - The witness was impeached with questions that revealed that he was the
reincarnation of Jean Harlow.
 IF it’s a private delusion -> the witness CAN be impeached, BUT…
 IF it’s a religious belief -> the witness CANNOT be impeached.
 It CAN be admissible to show bias, but CANNOT base impeachment on
content of religious beliefs
 Prior INCONSISTENT Statements
o Any prior statement made by the witness himself MAY be used to impeach, NOT
for truth of the matter asserted.
 The prior statement MUST be inconsistent w/ the witness’s trial testimony
o Three possible objections to witness inconsistent statements:
 Hearsay
- Hogan situation – prosecutor wants to call witness solely to show
inconsistent statement. If not admissible for truth, . . . then sole
purpose is to impeach and that’s not ok (hoping that jury with
disregard . . . )
- Rule doesn’t apply in CA – inconsistent statements can be used for
their truth and as substantive evidence. FRE is diff!!
 No foundation for extrinsic evidence
- Coles case
- Supposed to give witness chance to explain or deny.
 Collateral impeachment
i. Essay in casebook. Oswalt rule – impeachment by contradiction –
cannot impeach witness with collateral evidence that has no role
others than impeach by contradictory evidence.
iii. Queen Caroline’s Rule (Bad law after Coles): “if the statements be in writing, they
shall be shown to the witness before any questions is put to him concerning
o FRE 613 - Prior Statements of Witnesses:
 613(a) - When questioning a witness about their prior statements, the party
does NOT have to show or disclose the contents to the witness, but on
request DOES have to show it to the opposing attorney.
 Abolishes Queen Caroline’s rule - now you no longer have to show the
witness a statement in writing before impeaching them.
 613(b) - Extrinsic evidence of a witness’s prior inconsistent statement IS
admissible ONLY IF the witness is given an opportunity to explain or deny the
statement AND the other party has opportunity to question the witness
about it.
 Collateral Evidence Rule - IF the inconsistent statement has nothing to
do with the case except to impeach -> you CANNOT bring it in.
 A prior inconsistent statement CAN be admitted to impeach - even if
does not fit the requirements of FRE 801(d)(1)(A) (ie. was given under
penalty of perjury at prior hearing).
o CEC 770 - Extrinsic evidence of prior inconsistent statement IS excluded - unless
the witness was given an opportunity to explain or deny.
o Case: Coles v. Harsch (1929) - (Under CL, had to lay foundation for prior
inconsistent statement)
 Facts: Coles (p) brought action against Harsch (D) for alienation of his wife
and introduced a statement from a witness saying D’s actions were improper
to impeach the credibility of Harsh’s witness.
 RULE: To impeach a witness based on statements inconsistent with those
uttered at the trial, a party must relate the statement to the witness within
the circumstances surrounding the making of the statement.
 Rationale: Before a prior inconsistent statement may be admitted for
impeachment, the statement must be related to witness, along with time,
places & persons present when the statement was made. (This is to cure the
problems of faulty memory.)
 Here, the witness was asked about a conversation with Coles & his
testimony differed on cross-exam than on direct. The foundation was
NOT sufficient - he did NOT submit to the witness any identifying
circumstances surrounding the making of the statement.
 Analysis: Benefits of allowing a witness to explain or deny an inconsistent
statement before calling another witness to describe the same statement:
 Fair to give him a chance to deny making the statement.
 Might be able to explain content.
 If the declarant admits making the statement, time can be saved
because it may not be necessary to call the witness who hears the
 Prior CONSISTENT Statements:
o Prior consistent statements (FRE 801(d)(1)(B)) are ONLY admissible - when made
BEFORE the alleged fabrication or motive arose.
o Case: Tome v. US (1995) - (Prior consistent statements are ONLY admissible - IF
made BEFORE motive arose)
 Facts: Tome (D) was charged with sexual abuse of 4 year old daughter. D
said the abuse accusations were created as part of custody battle.
Statements offered by prosecutor as prior consistent statements.
 Rule: Out-of-court consistent statements made after alleged fabrication or
after the alleged motive arose, are NOT admissible under 801(d)(1)(B).
 (Only applies to FRE 801(d)(1)(B))
 Analysis: The CL rule says that the prior consistent statement has NO
relevancy to refute the charge - UNLESS the statement was made BEFORE
the source of bias, or influence. A consistent statement that predates the
motive is a rebuttal of the charge that the testimony was contrived as a
consequence of the motive. IF the rule were to permit prior statements as
substantive evidence -> the emphasis on the trial would shift to out of court
o What’s the harm of admitting prior consistent statements? Why have any limits?
 Waste of time - have witness testifying and then have duplicate testimony
what’s the point - credibility of their testimony depends on the first witness.
 Repeat Doesn't Ensure Validity - Just because declarant has repeated it,
doesn’t make it true
 Trial Should Emphasize In-Court Statements - Emphasis of trial can shift to
out of court statements not in court statements
 May focus on experts and lose focus of what child said
o HYPOS - Accused is charged with distribution of cocaine. The first prosecution
witness testifies that he bought 2 kilos of cocaine from the defendant. On direct
examination, the prosecutor asks the witness whether he gave the same
testimony before the grand jury. Objection. Admissible or Not?
 Inadmissible -> because he was under the same motive to lie that he is now,
there was no charge or recent influence or undue motive. It would be a
waste of time – because he is testifying on the stand & he hasn’t been
o Note - Prior consistent statements are NOT subject to a limiting instruction. FRE
801(d)(1)(B) states that this evidence may be used as substantive evidence.
 A witness’s bias, interest, partiality or corruption IS ALWAYS relevant for impeachment.
o Not Collateral - Extrinsic evidence of bias IS ALWAYS admissible – because it is
NOT considered a “collateral” matter.
 Case: US v. Abel (1984) - (Evidence of a Witness’s Bias is NOT “Collateral”)
o Facts: In bank robbery case, prosecution wanted to impeach the witness by
showing he was involved in a secret organization which required members to
commit perjury, theft & murder.
o RULE: Evidence of a witness’s bias is NOT “collateral” & thus IS admissible.
o Analysis: Here - evidence about the prison gang made the existence of the
witness’s bias towards D more probable. D claims that even if the evidence of
bias was relevant, the court erred in allowing the jury to hear a full description of
the gang & inflamed the jury against him. Here - it WAS Relevant – because the
membership was a close group & may show bias to slant testimony about another
member. The evidence IS highly probative & NOT unduly prejudicial.
3. Lay the Foundation Before Impeaching a Witness:
 Witness objections
o Q: "Tell us what happened?"
 Objection-Narrative - CANNOT allow a narrative answer
 Reframe question - "where was he on…"
o Witness says: "He was driving like a maniac"
 Objection-Opinion - Needs to be more specific: "he was swerving"
o If question goes to central issue in the case-
 Objection-Leading the Witness
 CAN lead - IF not a disputed fact… (Ex: "You live next door to D, correct?")
o Witness says - testified with police officer, what did you say?
 Objection-Hearsay
o Q: "What was the condition of D’s car?"
 Objection-No Personal Knowledge - Have to lay a foundation
o Q: CAN ask about reputation in community?
 Basic Rule - is CANNOT use evidence of character to show conduct
 Exception - in criminal case prosecution CAN meet defense's evidence
 Character to impeach witness
 Character of victim
 Example: Character of Sobriety While Driving-
 Objection-Character Attack-
 CAN attack character reputation for truth - IF he has testified.
29. Review: Impeaching the Character of a Witness
 Rule 402: Relevant evidence is admissible unless otherwise provided.
 Rule 404: Character evidence is generally not admissible to show action.
 Rule 608
 Rule 608(a): Reputation or opinion testimony about character for
30. List of ways that EVIDENCE can come to light: <<<RECONCILE WITH ABOVE & SLIDES>>>
 Character type evidence
o 404(a) - Evidence on D via Mercy Rule
o 404(b) - Evidence on victim
 404(b) - KIPPOMIA
 Insanity (Lindstrom)
 405(b) - Essential element of crime -> specific conduct
 413 - Criminal Sexual assault case, can admit other sexual assault evidence
 414 - Criminal Child molestation case, can admit other child molestation evidence
 415 - Civil sexual assault or child molestation, can admit prior evidence of sexual assault or
child molestation
 608(a) - reputation/opinion testimony attacking character, opens door for testimony
supporting it
 608(b) - except for 609 prior convictions, no evidence of specific prior acts (can ask about it
on cross though)
 609 - crimes >1 year or dishonesty crimes.

 Rule: Confidential communications between attorney & clients or representatives made in

the course of the professional relationship ARE privileged.
o Who Holds the Privilege? -> CLIENT holds the privilege, NOT the Attorney.
o Requirements - For AC privilege to apply, must be:
 (1) Confidential;
 (2) Communication;
 (3) Made for purpose of legal advice in the course of professional relationship; &
 (4) Between the attorney (or attorney representative)
 (5) & person (client )
o In Corporate Context - Communications must be within the scope of employee’s
business duties - AC should only cover situations where very important to confide in the
attorney & get info about things within the scope of their duties and what they did for
the performance of their job rather than what they observed others do.
o Current Trend – Attorney-Client confidence protected against eavesdroppers - IF the
client has a reasonable expectation of privacy -> client IS protected - even so far as the
client is aware the communication is confidential.
 FRE 501 - Provides choice of law in that privilege is governed by the principles of common law
– FRE does NOT define contours of attorney client privilege.
o When applying State substantive law -> Federal Courts use State privilege law.
o When applying Federal substantive law -> Federal Courts use the principles of common
law (interpreted in the light of reason and experience)
 FRE 502 - IF reasonable measures are taken to preserve the privilege -> anything that slips
through in discovery or is accidently turned over to the other party does NOT constitute a
waiver of privilege.
o A-C Privilege CAN be Waived or Forfeited - IF the opponent offers a privileged
document and the holder of the privilege makes no objection.
 CEC 952:
o Lawyer-Client communication retains its privileged status - IF it is transmitted by a
means that so far as the client is aware didn’t discloses the info to any 3rd parties.
[ NOTE: Just depends on if client AWARE ]
 CA is subjective (Fed. is objective) – You, as a reasonable person, have to believe
that no one can overhear your communications and that they are confidential.
o CA is basically the same as FRE - has 11 point test called “Chadburn test” which is
consistent with Upjohn.
 Jeremy Bentham - Rationale of Judicial Evidence:
o Bentham Opposed the AC privilege
 He ridiculed the argument that if AC confidences are not protected from
disclosure, society will suffer because those confidences will not be reposed
 He argued that if a D is guilty, then the guilty party will just get more help, and if D
is innocent he has nothing to hide, so no need to be protected by AC
 Argument against this - Collateral Issues - even innocent people have
collateral issues that they may not want shared which are not central to the
o Standard Rationale - If don’t have AC privilege, people will be afraid to talk to their
lawyers. Need AC privilege so attorneys can effectively represent clients and know the
weaknesses of their case so they know when to settle.
 Lawyer needs to know the weak part of their case.
o Attorney interview bystander who saw the accident leading to suit -> NOT protected
o Attorney interviews client in front of a stranger -> NOT protected/NOT confidential
o Attorney interviews client in front of the attorneys law clerk -> YES, Protected
o Attorney-client consultation overheard on legal wiretap -> YES, Protected.
o Attorney-client consultation overheard by eavesdropper -> YES, Protected
o Client flees, attorney called to testify whether client has scar -> NOT Protected. Must
be a communication to be protected. If it’s an obvious scar that is observable, NOT a
“communication” and thus, NOT covered.
o Client shows attorney property defect -> YES, protected.
o Client sends cover letter and records to attorney -> cover letter is YES, Protected;
records are NOT protected - because not confidential communications.
o Friend calls attorney-friend and tells him something -> NO, NOT Protected.
o Attorney hires expert to examine defect in personal injury litigation. Expert issues
unfavorable report. Expert is attorney’s agent and communications -> YES, protected.
 BUT, expert’s observance of defect is NOT protected - because merely what
expert saw.
o Clients acts on illegal advice (for purpose/use of committing a crime) given by attorney
-> NO, NOT Protected.
 Case: US v. Woodruff (1974) - (Attorney-Client privilege applies ONLY to confidential
communications in the course of legal relationship)
o Facts: Woodruff (D) did not appear for his trial and the government questioned
whether his attorney explained to him the place of trial.
o RULE: Communications between an attorney and his client ARE privileged - WHEN an
attorney is providing legal advice.
o Rationale: Disclosure of communication regarding the time & place of trial does NOT
constitute a violation of attorney client privilege. Communications are protected when
they relate to a legal problem and communications about the trial date do not relate to
the legal problem.
 Case: Upjohn v. US (1981) - (AC Privilege extends to corporate employees relevant to
o Facts: Upjohn accountants perform investigation of payments to foreign government
officials & sends questioners to the managers. The IRS also started an investigation and
demanded production of all documents in the company’s investigation. Upjohn refused
saying that they were protected by attorney-client privilege.
o RULE: A corporation’s attorney-client privilege should NOT be limited to those in a
position of control.
o Lower Ct. held that only the senior officials possess an identity analogous to the
corporation as a whole - the “Control Group”. Corporate council needs information
from other employees to give informed advice to the client.
o Here - the control group test frustrates the purpose of legal counsel by discouraging
communications between the corporate council and employees. Attorneys need to
have all the facts to give their client the best advice.
 Note - The communications, not the underlying facts of the communications, are
protected, so the government can still interview/depose the employees.
 Note - The communications here concerned matters within the scope of
 Note - AC privilege belongs to the client (the corporation), not individual
o Must Be Related to Employee's Job - privilege under Upjohn is only extended to
matters within the scope of the employee’s corporate duties
o After Upjohn - Factors: If investigating corporation, constructing the communication to
have it covered under attorney-client privilege:
 (1) emphasize confidentiality of investigation and communications;
 (2) clarify that investigation is for legal, not business purposes;
 (3) make the communication direct between counsel and employee;
 (4) keep investigation within scope of employment.
 (5) clarify that attorney is for the corporation, not the employees
 (6) part of employee duty to answer the questions.
 During discovery, a claim of A/C privilege is likely to be accompanied by a claim that the
material is protected under Fed.R.Civ.Pro. as “work product”. A limited work product
protection is also recognized in criminal cases
o Differences between work product and a/c privilege:
 Material covered by a/c privilege cannot be discovered even if the opponent
demonstrates that she has a special need for the material to prepare her case.
Material covered only by work product protection can be discoverable upon
showing (if it does not reveal mental impressions of attorney or other rep.
 a/c privilege only applies to confidential communications btwn attorney (or rep.)
and the client (or rep.). A much larger category of material is covered by the work
product protection
 the work product protection applies only to information gathered in anticipation
of litigation, where a/c covers confidential communications to the lawyer seeking
legal advice or services whether or not the litigation is expected
 Case: City/Co of SF v. Superior Ct - (A/C privilege extends to agents)
o Facts: In personal injury suit against city, P was examined by a doctor at request of his
attorneys in preparation of lawsuit. The Doc refused to answer questions about P’s
condition on ground that it was protected by the patient-physician & A/C privilege.
o RULE: An intermediate agent for communication between a client & his attorney MAY
invoke the A/C privilege.
o Rationale: When an attorney requires the assistance of a doctor to interpret the
clients’ condition, the client MAY submit to the examination without fear that it’ll be
 IF you put the doctor on the stand -> it constitutes a waiver/forfeiture and the
other party CAN force the doctor to reveal his findings.
 HYPO - Attorney wants client to take polygraph test and don’t want the communications
made during the test to be discoverable. If attorney hires the polygrapher and has the test
done in his legal office, tells him what to ask -> the polygrapher looks like the attorney’s
agent so it CAN invoke AC privilege.
 Case: Clark v. State
o Rule: Eavesdroppers may testify about attorney-client confidences. [ BAD LAW ]. The
attorney-client privilege does not extend to third parties who overhear a
communication between a client and his attorney.
o Facts: D was charged with murder, on the night of the murder, D made a call to phone
operator and asked the operator to call his lawyer. The operator listened to the entire
conversation between D and lawyer, during which D stated he had committed murder
and the attorney advised him to get rid of the murder weapon. Prosecutor sought to
introduce testimony of the phone operator (D argued conversation was privileged)
 Crime fraud exception:
o If the lawyer talks the client out of the illegal conduct, the privilege still applies.
o If the client does not intend to commit crime or fraud, the client is protected even if the
lawyer gives illegal advice, so long as the client does not take the advice.
 Case: Swidler & Berlin v. US (1998) - (AC privilege survives death-deals with duration of
o Held: AC communication remains privileged after death.
o Rationale: If a client knows the communications will remain confidential after death,
he’ll communicate fully with counsel. Important to keep the information privilege –
because clients could be concerned about reputation, civil liability, or harm to friends
and family.
o Note - Inheritance Cases are Different:
 Allow information -> because: trying to determine the intent of the testator.
 Different from AC privilege -> because: in inheritance, need to know how to
divide property & AC privilege is to protect information, so it wouldn’t be used in
a way the client would not want it to be used. In fact, using it exactly how the
client wanted it to be used.
 Case: Swidler & Berlin v. US (1998) - (Eavesdropping was admissible under CL - NOT
o Facts: Telephone operator overhears D telling attorney he killed his wife.
 Evidence of attorney client communications obtained by a 3rd party through
eavesdropping is NOT protected by AC privilege [ BAD LAW ]
 Crime-Fraud Exception - AC privilege does NOT apply to one who takes counsel in
how to commit a crime.
o A party who does not stand in any relation of confidence to the attorney or client is
exempt from the AC privilege. Also, it is not the interest of justice for a client to seek
advice for how to commit a crime - the conversation here was an aid to the criminal to
evade arrest.
o Note - It is no longer per se permissible for eavesdroppers to testify as long as the client
took reasonable precautions to keep the communication confidential.
 Crime Fraud Exception:
o Restatement, Section 82 – No AC when a client consults an attorney for the purpose of
getting aid in committing a crime or fraud – AND - that purpose is completed or
regardless of the client’s purpose, uses the advice to complete the crime or fraud.
o CEC § 956 – NO privilege – IF the services of the lawyer were sought or obtained to
enable or aid anyone to commit or plan to commit a crime or a fraud.
o Applies when:
 Client consults the attorney for the purpose of getting aid in committing a crime
or fraud and purpose is accomplished; or
 Regardless of the clients purpose, client uses the advice to commit a crime or
 N/A if Talks Out - If the lawyer talks the client out of the illegal conduct, the
privilege still applies
Doesn't Take Advice - If the client does not intend to commit crime or fraud, the
client is protected even if the lawyer gives illegal advice, so long as the client does
not take the advice.
o Case: US v. Zolin (1989) - (a party seeking review of evidence through crime fraud
exception MUST make a good faith showing that it is in the furtherance of crime)
 Facts: In investigation of the church of scientology, the IRS tried to access tape-
recorded meetings between the church & its attorneys. The judge was allowed to
review the privileged information in camera to decide whether it was made in
furtherance of crime or fraud.
 RULE: A party seeking in-camera review of AC-privilege-related evidence for the
purposes of the crime fraud exception MUST make a threshold showing before
the review.
 A judge CANNOT review privileged evidence under FRE 104(a). Examination of
the privileged evidence might jeopardize the security for which it was created.
There should be a balance between the need for judicial review & need for
privilege. Allowing in camera review will put the AC privilege at risk & places a
burden on D.C.’s to evaluate large records, but judicial review is also a smaller
intrusion on the parties so a lesser evidentiary showing should be required. The
judge must require a showing of a factual basis to support a good faith belief that
it is in the furtherance of crime or fraud.
 Zolin - Makes it EASIER to pierce the AC privilege - have to show reasonable belief
that in camera review would reveal evidence of crime and judge has discretion to
undertake in camera review.
 Administration of the crime fraud exception raises administration problems:
 Sometimes there can be circumstantial evidence showing this, but if there is
illegal wiretap that picks up conversation -> attorney may say it is privileged
- that would undermine the privilege if the judge were able to listen to this.
o CEC 915 - Judge must be provided with outside evidence before in camera review can
be conducted as to whether AC privilege applies. When a judge is unable to make some
determination without requiring disclosure of privilege information -> the judge may
order in-chamber disclosure to determine applicability of privilege.
 CANNOT use statement for the purpose of ruling on statement’s admissibility.
 Read Literally - it would seem to prohibit judge from examining allegedly
privileged material in the course of deciding whether the crime fraud exceptions
o HYPO - Under Zolin, a judge reviews the lawfully obtained evidence submitted to her.
She decides that a reasonable person could have a good faith belief that other
confidential lawyer-client communications that she has not yet seen were made in
furtherance of crime or fraud. These communications are in the possession of the
opposing party. The party seeking to penetrate the privilege asks her to review these
communications in camera. Does she have discretion to refuse to do so?
 YES - once the showing of good faith belief has been made, a judge has discretion
whether to review the materials privately without the other attorney seeing it.
 Judge has discretion to refuse to review material – because: it would be a waste of
time or material is too voluminous.
 Hickman v Taylor
o Law: opposing counsel must demonstrate necessity, justification, or undue prejudice for access
to counsels written statements, private memoranda, and personal recollections
o Facts: The attorney does not want to give up information that an attorney gathered from
witnesses of a shipwreck during interviews that the attorney had with the witnesses. Opposing
counsel asked for exact copies of all written statements and summaries of info taken orally.
o Issue: Is opposing counsels written statements, private memoranda, and personal thoughts
attorney-client privilege?
o Holding: No, but can get the information because it is work product privilege.
o Reasoning: They didn’t show necessity and they already have it from the public hearing. Court
says that the attorney client privilege does not apply, creates new work-product privilege.
 The info does not fall under attorney-client privilege because the witnesses are not clients
 Notes that opposing counsel is trying to get the work from the mind of the attorney
without showing any necessity or claiming that denial of such production would unduly
prejudice the preparation of their case or cause them any hardship or injustice.
o Case Importance: Attorneys allowed certain privileges so they do not have to disclose certain
info to opposing counsel during discovery. Mental Impression: difference between the
statements given by the witnesses and the lawyers’ notes on the interviews. Attorney must
show necessity or indication that denial of production would unduly prejudice the preparation
of the case and cause him harm.
o After this case, Rule 26 was revised to show that necessity and justification are needed:
 1. Necessity
 2. Undue hardship/prejudice
 3. Inability to get by other means
 Privilege Logs: as attorney goes through material will have to keep a log of privileged material and why it
is privileged
 Upjohn v United States
o Law: In the corporate context, the attorney-client privilege applies to not only those high-level
employees who have the authority to act on the legal advice of the attorney, but also to any of
those employees who provide information to the attorney so that he may give such legal advice
o Facts: π lead attorney did an investigation to investigate questionable payments to foreign
governments. Attorney created two types of documents 1.) Questionnaires that were sent out
and responded to by the employee and 2.) Notes that he took during interview of his own
thoughts. D wants both of the docs
o Issue: Are questionnaires sent to a company’s employees, including lower level employees, by
general counsel protected by attorney-client privilege
o Holding: Yes. In corps. Attorney-client privilege applies to all employees b/c people at all levels
may have info that an attorney needs. Said just protecting communications and not facts.
o Reasoning: Wrong standard or attorney work product applied, should applied opinion not
ordinary work product. We don’t know what the standard is, but whatever it is it is not met in
this case. Zone of silence- The questionnaires filled out are protected by A/C privilege, but the
facts contained within are not.
o Case Importance: Extends privilege to corporations. Attorney-client privilege is to encourage
open comm. with lawyers. A/C privilege does not privilege facts, it privileges comm. In order to
get good legal advice need full and frank communications between client and their lawyer, but
will not get full and frank communications if the client does not have attorney-client privilege
 Distinguishing Duplan (1975)
o Talking about a lawyer’s opinion, not an insurance adjuster opinion. The opinion is also from the
current litigation, not previous litigation
o Closer to a straight up legal opinion from a lawyer in the present case, closer it is to privilege
o What SCOTUS case do they both rely upon- Hickman
o Does the umbrella this case creates cover everyone?
 Probably not unless these people have relevant information
 If it is not a test, it resembles one
 Lower level employees must fit the criteria
 Was the employee privy to information? Was the employee acting in the scope of their
responsibility? Etc
o What does in anticipation of litigation
 Courts are split
 Narrow view is that the claim has been filed
 Broader view adopted by 2nd circuit (NY) has expanded it to mean that the purpose
of getting an attorneys advice is to understand legal liability, does not need to be an
official claim having been filed as long as you are seeking legal advice
 See the litigation looming on the horizon, that research will qualify

How to waive the privilege
o If you put the communication at issue
o Cant take advantage of a privilege, can take it away if it is abused to perpetrate a crime
or a fraud (Not a right because the court is bestowing the privilege)
o Waiver- purposeful and accidental
o If you turn over a privileged document and too much is redacted the court may waive
all of it. Document cannot act as a sword and a shield
o Privilege log- for every piece of information this has to be created to detail for the court
and the other side what the type of info it is (email, document, etc) the date on which it
was taken, type of material that it deals with
o Attorney-client privilege survives death

 Attorney Client and Work Product

o Both impede the search for truth
o Provide room for which attorneys can communicate
 Attorney Client Privilege
o Elements:
 1. Communication
 2. From the client to the lawyer
 3.without the presence of others
 4. For the purpose of seeking legal advice
o Good legal advice requires full and frank communication and will not get full and frank
communication with promise that communication will be confidential
o Attorney client privilege can be waived
 Crime fraud exception
 Disclosure to adversaries or to third parties and inadvertent disclosures
 Partial disclosure (only disclose partial part of document) waive privilege of whole
document (privilege cannot be used as both a sword and a shield by only giving
info that helps your case while redacting info that hurts it)
 Inadequate privilege log
 Client puts the communication at issue: saying I only did this because my attorney
advised me to do it
 Work Product Privilege
o Privilege is not absolute. Will have to look at it on a case by case basis.
o Includes mental impression of attorney and notes, memo and record of oral questions.
o Facts are not work product privilege: if other side wants to interview witnesses, they
 Opinion Work Product: mental impressions
 Will not know if this type of work can be overcome
 But it is unfair to have attorney submit their mental impressions because its
their legal strategy
 Ordinary Work Product Privilege documents and factual material
 Can be overcome by showing substantial need, without undue hardship and
not able to obtain substantial equivalence by other means (others believe
that you cant untwine facts from thoughts so it is never available)
 Different because ordinary includes facts that can be out in the world that
the other side can get and opinion is inside the attorneys head. Exceptions
to where you can get the ordinary work product, but not really opinion work
product. Rule 26- Higher threshold for opinion work product if you can even
get it-Cannot get material without undue hardship
 Ordinary notes
o Privilege and the Government
 Should privilege be more robust when government is on the other side,
rather than a private party: Government has more access to getting the
 Should have less privilege when government: Some strong public policy
behind government so should have more intrusive means for getting
 _Psychotherapist_Patient _Privilege (_Psychologist)
 Psychotherapist Patient Privilege - Confidential communications between licensed
therapists/social workers and patients in the course of treatment ARE protected from
compelled disclosure
 Requirements:
o Confidential communications (not group)
o Between licensed therapists/social works and patients
o In the course of treatment.
 Exceptions to Privilege:
o Consultation in furtherance of crime or tort
o Malpractice suit where patient suing therapist
o Dangerous patient where therapist needs to warn someone
o <<<<<what about patient-litigant????>>>>>
 Case: Jaffee v. Redmond (1996) - (Communications between a patient and his
psychotherapist for purposes of diagnosis or treatment of an emotional or mental condition
are confidential and generally inadmissible)
o Facts: A former police officer shot and killed a man while on duty. Prosecution tried to
use the notes from the officer’s therapy sessions to prove wrongful death.
o RULE: Psychotherapist-patient privilege should apply in all federal cases.
o Rationale: The privilege protecting confidential communications in rooted in the need
for confidence & trust in counseling relationships. We want to protect the privilege to
encourage people to go to therapy. Privilege covers confidential communications to
licensed psychiatrists -> so it should extend to therapeutic communications with social
workers. It is NOT a balancing test of public & private interests.
o Dissent (Scalia) -
 Disputed every major logical premise on which the majority's decision rested
 Therapist-patient privilege is not necessary. Psychotherapy was a thriving practice
before the privilege.
 Counterargument-
 He disparages the encouragement rationale. “How come psychotherapy got
to be a thriving practice even before the privilege was invented? Were the
patients paying money to lie to their analysts all those years?” p. 567
o Response:
 Want to protect human dignity is keeping people’s secrets. If we
had privilege, even more people will will go to therapy - even
those you are concerned about potential litigation. It may have
been thriving in dollars, but it may not have been quality therapy.
 Different types of patients; some will not be going with any sort
of fear of being sued in the future / that it could be used against
them in court
 Moms are important to mental health, but there’s no privilege for Moms?
o Response:
 Bad comparison. No privilege needed to keep mom from
testifying against you (nature of the relationship).
 Therapist might have special training that mom doesn’t have
 Therapist must gain the trust of the patient (perhaps unlike
family members) and telling the patient about the privilege could
foster this trust. More important for professional that are not
related to the confider to tell them that they will keep their
secrets. Moms will probably lie for their children.
 He says it’s unfair to deny guilt at trial yet get the benefits of psychotherapy
by confessing guilt to a therapist.
o Response: Helps innocent as well as the guilty
 It's irresponsible to extend the privilege to licensed social workers. Social
workers aren’t experts. And majority of states haven’t extended the privlege
to social workers.
o Response: People of modest means need to go social workers --> if
the therapy is going to work they need to have such a privilege. Just
because not as trained, doesn’t mean they aren’t a professional.
o Under Jaffee:
 Therapist finding out something for court = NOT Protected -> because not in the
course of therapist-patient relationship.
 Group Therapy / Presence of 3rd parties = NOT Protected – because not
 Case: Prink v. Rockefeller Center (1979) - (Patient-litigant exception)
o Facts: Mr. Prink died (jumped from window); medical examiner noted that dead Mr.
Prink’s psychiatrist had said he was “acutely tense and depressed.” P (Prink’s wife)
claimed privilege when asked about the contents of her convos with P’s shrink.
o Holding: The physician patient privilege applied (not terminated by death and attended
patient in professional capacity) but this was waived because it was wrongful death
action, had he been alive, he couldn’t resist D’s demands to disclose this info. Putting
mental or physical condition at issue waives the privilege.
 Dangerous Patient Exception:
o CEC 1024 (Dangerous Patient) - There is NO Privilege - IF the psychotherapist has
reasonable cause to believe that the patient is in such mental or emotional condition as
to be dangerous to himself or to the person or property of another and that disclosure
of the communication is necessary to prevent the threatened danger.
 Privilege is lost under CA law.
o 9th Circuit – ONLY allows you to reveal the threat insofar as it is necessary to protect.
(Under Federal, they CAN warn the person, but it is NOT sure that they would be
required to testify during litigation about it).
 2 Marital Privileges
o (1) Privilege Against Adverse Spousal Testimony - a spouse MAY refuse to testify
against his/her spouse regarding any matter (No one, including the other spouse, can
force them to testify or foreclose them from testifying)
 Rationale:
 Intended to prevent harm to marriage caused by adverse testimony
 Must be married to apply this
 Only During Marriage - Lasts for length of the marriage
 Under Trammel this is held by and evoked by the testifying spouse
 CEC § 970 - Spouse HAS privilege NOT to testify against spouse (like Adverse
Spousal Testimony).
 CEC § 971 - Witness spouse has a privilege not to be called as a witness without
prior consent.
 What does CEC 971 add to CEC 970? ->
 Can't Make a Show of It - For purposes of show - CANT call the opposing
party’s spouse & force them to say they are invoking the privilege
o (2) Confidential Communications – CEC § 980: Either spouse CAN prohibit the other
spouse from testifying against them regarding confidential communications made
DURING the marriage. (like AC privilege, it covers communications made during the
course of the relationship)
 What does the 980 add to 970?
 (1) Either may testify - in husband and wife case, under 970 she can testify
but under 980, she can be prevented from testifying…
 (2) Survives AFTER the marriage.
 Privilege Survives Termination of Marriage (Just as it is with the AC privilege after
death, if there is a divorce -> it IS still in effect)
 Advisory committee says to abolish this because people don’t consider this when
deciding whether to discuss things with their spouse.
 Exceptions:
 CEC 972 – Exceptions: Spouse Against Spouse (Adversaries) -Divorce & child
custody proceedings; inter-martial crimes; competence proceedings; marry a
witness for the purposes of keeping witness from testifying)
 CA Typical Exceptions List:
o Suits between spouses
o Crimes against children
o Domestic Violence
o After-crime marriage to witness
o Crime-fraud exception (but the exception only applies to the
confidential communication privilege)
 Case: Trammel v. US (1980) - (D-spouse does NOT hold the privilege & CANNOT prevent
spouse from testifying; testifying spouse is holder of the privilege)
o Facts: Trammel (D) was indicted on drug charges & tried to prevent his wife from
testifying against him. Trial court allowed her to testify to conversations that took place
in the presence of 3rd parties & prevented her from testifying to conversations that
took place between them in the absence of other parties.
o RULE: An accused CANNOT invoke a privilege against adverse spousal testimony to
exclude voluntary testimony of the spouse.
o Rationale: Previously under Hawkins, a party was not able to testify adversely against
his spouse, BUT the public has a right to every man’s evidence, so the rule of privilege
must be strictly construed to ensure that the refusal to testify serves a public good.
Private communications between a husband & wife are protected by the marital
communications privilege. This rule is broad and without justification, so court holds
that the witness spouse CAN testify adversely.
 Note: She CANNOT testify about confidential communications, BUT she CAN
testify about things witnessed by 3rd parties.
 Clergy - Communicant Privilege
 A privilege for clergymen-penitent confidence was included in the proposed FRE privilege
provisions, but was delected with all the other special privileges. A federal court in a federal
question would probably recognize some form of the privilege as a matter of CL
interpretation under FRE 501
 All states except W. Virginia have statutes granting some form of privilege for confidential
communications between clergyman and penitent
 Scope: in most states the privilege covers all confidential communications made by a person
to a clergyman in his professional character as spiritual advisor
 Parent-Child Privilege
 In re Grand Jury: A parent-child testimonial privilege does not exist. Although Rule 501 allows
courts to define witness privileges through the use of “common law the light of
reason and experience,” no such reason or experience can be drawn upon to create a parent-
child testimonial privilege. The Advisory Committee on the Rules of Evidence did not
recommend adoption of a parent-child privilege despite its recommending nine other specific
privileges. Unlike many of these recognized privileges, confidentiality is not essential to a
successful parent-child relationship. In addition, no federal courts of appeals and no state
supreme courts have recognized such a privilege. Moreover, the court finds that a parent-
child privilege would have no positive impact on the parent-child relationship and the
absence of such a privilege does not create a substantial harm to the relationship.
 News-Persons Privilege
 most states recognize a privilege for journalists; SCOTUS has not recognized a privilege under
the 1st Amendment, but some federal courts have recognized a qualified privilege for
journalists; what is protected is the confidential source of the info and some states will
protect the notes as well
 Privilege given to journalists to decline to divulge the identities of their confidential news
o Rationale: reporters have argued that they must be able to promise confidentiality to
their sources or the sources will dry up if their identities may be subject to compulsory
disclosure. The use of confidential sources lets reporters be more effective, and
effective reporting is in the publics interest, journalists content a limited privilege is
socially desirable
o Journalists are mainly worried about disclosure of the identity of their sources, but also
concerned about being forced to disclose the contents of the communications intended
as background info instead of for publication
o Journalist source privilege has evolved mostly by the enactment of state statutes
 Matter of Farber
o Conflict between privilege and defendant’s rights: what if a criminal D who seeks info,
including identification of sources from a journalist? Any privilege the journalist has
(whether from a state shield statue, from the Constitution, or from CL) may conflict
with the Ds 6th A right to compulsory process and confront the witness against him
o In Farber, the court held that where such a conflict exists, the journalist’s privilege must
give way to the Ds 6th A rights:
 Facts: A NYT reporter investigated a series of hospital dealths and wrote a series
of articles that led to the prosecution of a Dr. J for murder. The defense
subpoenaed the reporters records of investigation.
 Holding: Court held that the info sought was so central to Dr. Js defense, and
unavailable from other sources, so granting a privilege to the reporter would
amount to denying the D his federal and state constitutional right to have
“compulsory process for obtaining witnesses in his favor”
 If the D can convince a trial judge there is a reasonable probability the info sought
is material and relevant, and not obtainable by other means, judge will inspect
materials in camera and make a decision.

 Inadvertent WAIVER
 Peterson v. Bernardi
o Rule: A plaintiff who files a motion to compel the return of allegedly protected
documents has the burden of proving (1) that the documents in question are privileged
under the attorney-client privilege or work product doctrine and (2) the requirements
of FRE 502(b). Under 502(b), an alleged inadvertent disclosure of privileged documents
does not result in a waiver of the A/C privilege if the claimant can show (1) the
disclosure was inadvertent, (2) The holder of the privilege or protection took
reasonable steps to prevent the disclosure, and (3) The holder of the privilege promptly
took reasonable steps to rectify the error.
 Advise of counsel defense- those communications that would otherwise be privileged are
now fair game because of the defense you are raising
 Governmental Privileges
 Litigants will aoften need info that is in the prossesion of the government- maybe where the
government is a party to the litigator or where it is not a party. The government will often
have a strong counterveiling interest in not disclosing material
 Military: United States v Reynolds
o Overview: Air Force case. Plane testing classified technology crashes and kills civilians
on board. AF offers to make three surviving officers available for deposition. Plaintiffs
request documents of AF internal investigation.
o AF denies, trial court judge orders documents submitted for private 104(a) hearing. AF
denies and court uses this as a FRCP 37 admission of negligence, finds for P; AF appeals.
o Issue: Does the judge have the capacity to order the governmental entity to submit the
documents for judicial review, to determine whether or not privilege applies?
o Result: The court must make a judgment under the totality of the circumstances
whether a privilege is likely to be applicable
 “reasonable danger that compulsion of the evidence will expose military matters
which, in the interest of national security, should not be divulged”
 Balance this against necessity of obtaining information: “the showing of necessity
which is made will determine how far the court should probe in satisfying itself
that the occasion for the privilege is appropriate”
o Does privilege attach?
 Showing of necessity doesn’t determine whether the privilege should or should
not attach
 …it simply determines how skeptical of the claim of governmental privilege the
court should be
o Some secrets must be protected, no matter what: “even the most compelling necessity
cannot overcome the claim of privilege if the court is ultimately satisfied that military
secrets are at stake”
 Conclusion: There are two elements that act as weights in favor of applying the privilege, and
only weight on the other side of the scale; governmental privilege appears favored. Note the
strong emphasis on national security
 Analysis:
o Governmental military privilege is undoubtedly over-inclusive – used to protect
information that does not need to be privileged.
o but what is the solution? Federal judges with security clearances might not even help –
they become part of the system.
 U.S. v Nixon [Executive Privilege]
o Overview: Nixon listed as unindicted co-conspirator; the special prosecutor subpoenaed
certain documents and received edited transcripts. Demanded unedited transcripts.
District court denied Nixon’s motion to quash subpoena – denied claim of executive
privilege and ordered full release
o Held: district court treated material as presumptively privileged but found that the
special prosecutor demonstrated the essential nature of the material; The district court
was allowed to demand in camera review of the material
o Analysis Nixon Rule: – upon receiving a claim of privilege from the executive “the
District Court to treat the subpoenaed material as presumptively privileged and to
require the Special Prosecutor to demonstrate that the Presidential material was
‘essential to the justice of the [pending criminal] case”
 query: Does this apply only to the criminal setting? Would it apply to the Enron
hypo (civil setting)?
 National Security: Nixon court expressly distinguishes Reynolds – no matters of
national security in this case.
o Conclusion: There is no absolute executive privilege – the courts are allowed to review
such claims.
 Other notes on Privilege:
o Consider privileges we don’t have (social worker-client; parent-child; AA confessions;
o Non-formal interpretation of privilege rules:
 formal interpretation: means to give literal, normative force at the point of
application to the term
 non-formal interpretation: means a non-literal interpretation
 Brewer: There is a tendency to interpret privilege statutes non-formally
 See Woodruff, see also City of San Francisco (notes pg 87)
 E.g., “relates to” clause in the United Shoe test appears broad, but is
narrowly construed.
 Rationale:
 Courts are uneasy about the tension between the privilege rationale
(whether consequentialist or deontological) and the desire for accurate fact-
 This may explain why there are broadly written privilege rules which are
read and construed narrowly.
 See Frankfurter (U.S. v Nixon case): The court should allow privilege only
when “permitting a refusal to testify or excluding relevant evidence has a
public good transcending the normally predominant principle of utilizing all
rational means for ascertaining truth”
 U.S. v. Tzannos
o Rule: In determining whether the government must give up the identity of an
informant, the court must balance the public interest in protecting the free flow of
evidence from informants and the safety of the informant with the defendant’s right to
prepare a meaningful defense. Government has recognized privilege to keep
confidential the identity of a government informant and the privilege will generally be
upheld unless the court determines the Ds need to prepare a defense outweigh the
public interest, taking into account the crime charged, other possible defenses
available, and the significance of the disclosure of the informants identity.
o Analysis: In this case, the informant is not the sole participant in the bookmaking crime
and in fact was not involved in the commission of the crime at all. In addition, the
informant was not the only witness, nor the only evidence against D that he had an
opportunity to refute. Finally, the prosecution presented evidence that the informant’s
life would be in danger if his identity was revealed. As a result, the disclosure of the
informant’s identity is not necessary for D to prepare a meaningful defense and D has
failed to show why disclosure of the informant’s identity is warranted. Furthermore, the
district court’s holding effectively and improperly shifted the burden of proof to the
prosecution by not enabling it to disprove D allegation that the informant did not exist
without affirmatively proving that the informant did exist.


 Misnomer - Best Evidence is a little bit of misnomer, if hatchet is used in murder, can just bring in photo.
 Rule: Need original or excuse
 Nutshell Rule:
o The proponent of a writing, recording, or photograph must produce
 The original, or
 A duplicate, or
 An excuse
 Three Possible Objections to Admission of a Writing:
o Hearsay
o Authentication (proving something is what it purports to be)
o Best Evidence Rule: Actual writing or explanation of why it is not available
 (Generally only applies to situations where inferior evidence is offered in lieu of
original writing)
 FRE 1001 – Definitions:
o “Writings” & “Recordings” = letters, words, or numbers or their equivalent, set down
by handwriting, typewriting, printing, photo-stating, photographing, magnetic impulse,
mechanical or electronic recording, or other form of data compilation.
 **Also covers computer disks and other ways of recording on tangible things.
o “Photographs” = still photos, X-ray films, videotapes, & motion pictures.
o Original =
 Writing or Recording = the writing or recording, itself, or any counterpart intended
to have the same effect by a person executing or issuing it.
 Photograph = the negative or any print therefrom.
 Computer/Similar Device = any printout or other output readable by sight, shown
to reflect the data accurately.
o Duplicate = a counterpart produced by the same impression as the original, or from the
same matrix, or by means of photography, including enlargements & miniatures, or by
mechanical or electronic recording, or by chemical reproduction, or by other equivalent
techniques which accurately reproduces the original.
 FRE 1002 - Requirement of Original:
o TEXT: To prove the “content” of a writing, recording, or photograph -> the original
writing, recording, or photograph is required (except as otherwise provided by the FRE
or by Act of Congress).
o Best Evidence Rule requires that if a party wants to prove the contents of a writing -> a
recording or photo of the original must be introduced in evidence.
o Occurs when:
 (1) the event being proved is a written transaction, such as will or contract;
 (2) a party chooses to have a written method of proof;
 (3) witness’s knowledge is derived from having read the document.
o IF the Original is NOT Available -> the party must explain the failure to produce & can
produce secondary documents like photocopies.
o Goal: Prevention of fraud, but also better evidence to show actual writing, recording or
photograph, rather than just a person’s unreliable recollection of the same.
o Recorded Conversations - Where witness testifying only to contents of something said
in conversation that was recorded -> recording is NOT the Best Evidence. If testimony
can cover conversation without going through the contents -> then BER is NOT
 FRE 1003 - Admissibility of Duplicates:
o A duplicate IS admissible to same extent as the original - UNLESS a genuine question is
raised as to authenticity OR circumstances make it unfair to admit the duplicate.
 FRE 1004 - Admissibility of Other Evidence of Contents:
o An original writing is NOT required – AND - other evidence of the content of a writing,
recording, or photograph IS admissible – IF:
 (1) All the originals are lost or destroyed (unless proponent did so in bad faith)
 (2) An original cannot be obtained by judicial process.
 (3) The party against whom the original is offered had control of the original and
failed to produce it.
 (4) The writing, recording or photograph is not related to a controlling issue.
o Any excuse, except bad faith, is good
o This is a rule of preference - original preferred, but settle for second best.
 FRE 1005 - Copies Of Public Records To Prove Contents:
o The party offering the evidence CAN prove the content of an official record - IF the copy
is certified or tested to be correct by a witness who has compared it to original.
 If no copy can be obtained -> the proponent CAN use other evidence to show
 FRE 1006 - Summaries to Prove Content:
o Proponent CAN use a summary, chart, or calculation to prove the content of a
voluminous writing that cannot be conveniently examined in court.
 FRE 1007 – Testimony or Written Admission of Party:
o Contents of writings, recordings, or photographs MAY be proved by the testimony or
deposition of the party against whom the evidence is offered. The proponent need non
account for the original.
 FRE 1008 - Functions of Court and Jury:
o Ordinarily a court determines if the proponent has fulfilled the condition for admitting
the writing, recording or photograph…
 BUT in a jury trial -> the jury determines any issue about:
 If it existed
 Whether it’s the original
 Other evidence of content is accurate
 Sirico v. Cotto (N.Y. Civil Ct.-1971) (Pg. 634) - (To Prove Document Contents, the BER Requires
that the Document be Produced)
o Personal injury case-Doctor testified about contents of X-rays w/o producing them.
o RULE: a Witness may NOT Prove the Contents of a Document w/o Producing the
o Doctor’s testimony was NOT Admissible – b/c: he tried to prove the contents of the X-
Rays w/o Producing them. The doctors’ notes could have been secondary sources of the
contents, & IF the P had explained her failure to provide the originals - the secondary
source COULD have been Admissible.
 FRE 703: Actual x-ray NOT necessary IF it’s reasonable for experts to rely on same
 Door always open to argue that quality of duplicate is NOT equivalent to original.
 Herzog v. Swift (Pg. 637) - (BER does NOT Preclude Oral Testimony)
o To prove earnings of her husband, P offered testimony of his business partner as to his
earnings, but accounting books were not entered into evidence.
o RULE: When there is No Attempt to Prove the Contents of the Writing - the BER is NOT
o The Contents of the accounting books were not being proven, rather the issue was the
earnings, which were recorded into books for convenience. If the Conclusion can be
reached w/o Reference to the Contents of the writing - then the Proof of the writing is
NOT in issue.
o Vertexes of triangle:
 Writing
 Testimony
 Conclusion
o IF you can go from the testimony straight to the conclusion without any recording or
photograph -> then it’s NOT about the contents of a writing.
o IF you have to go to the writing in order to get to the conclusion -> then it IS about the
contents of the writing.
 Case: Meyers v. US (1948) - (Witness testimony MAY be admissible - even if there is a
written transcript)
o Facts: Witness testified about a party’s testimony before a senate committee when
there was a written transcript of what was said.
o Rule: BER is not evoked merely because a written document is the best evidence of the
o Analysis: The content at issue was his testimony, not the content of the record. The
witness was testifying to what he heard, not what was said in the record.
 Case: People v. Enskat (1971) - (BER applies to film/photographs)
o Facts: Enskat was on trial for showing obscene films, and the contents of the film were
being proven by photos taken by the police, not the film itself
o RULE: Secondary evidence of contents of a writing/film are NOT admissible - UNLESS
there is a reason the original cannot be produced.
o Analysis: A “writing” includes a photograph, film or means of recording. Here - the film
was the best evidence, and they didn’t show that it was not available
 Authentication - Refers to a showing that something is what it purports to be.
o Question of FRE 104(a) Conditional Relevancy - Judge must determine whether
reasonable jury would more likely than not think it is what it purports to be.
o Some Evidence is Self-Authenticating. See FRE 902 for list of self-authenticating types
of evidence (where extrinsic evidence of authenticity is NOT required as condition
 Note that letters and emails are NOT self-authenticating. If it is not listed, then the
document cannot be self authenticated
o Circumstantial evidence is best & most common way to authenticate, e.g., where
contents of letter taken in conjunction with circumstantial evidence (Example:
signature) authenticates it.
 FRE 901 - Authenticating or Identifying Evidence:
o 901(a) - Proponent has burden of proving that an item of evidence is genuine
authentication requirement is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims it to be.
 Very easy to satisfy this rule! (chain of custody works well!)
o 901(b) - Examples that satisfy requirement (NOT limited to the following though):
 1) Testimony of witness w/ knowledge
 2) Non-expert opinion on handwriting
 3) Comparison by trier or expert
 4) Distinctive characteristics
 5) Voice identification
 6) Telephone conversations
 7) Public records or reports
 8) Ancient documents or data Compilation
 9) Process or System
 10) Methods Provided by Statute or Rule
 FRE 902: Some items of evidence are self-authenticating & require no extrinsic evidence of
authenticity to be admitted, such as:
o Signed & unsigned domestic & foreign public documents; certified copies of public
records; official publications; newspapers & periodicals trade inscriptions;
acknowledged documents; commercial paper & related documents; presumptions
under acts of Congress; certified domestic and foreign records of regularly conducted
 FRE 903 – Subscribing Witness’ Testimony Unnecessary:
o The testimony of a subscribing witness is NOT necessary to authenticate a writing –
unless required by the laws of the jdxn whose laws govern the validity of the writing.
 Case: US v. Dockins (1993) -
o Facts: Docking (D) was convicted of illegal possession of firearms. D challenged the
court’s admission of an exhibit containing a fingerprint card and police record sheet
purporting to come from the Denver police department saying they were not properly
o RULE: Authentication is satisfied so a reasonable jury can conclude the evidence is
what it purports to be.
o Why: The officer testifies about the contents of the exhibit, but did not show they
came from the police department.
o Held: NOT Self-Authenticating.
 Case: US v. Hampton (2006)
o Facts: In bank robbery case, the government introduced photocopies of the bank’s
certificates of insurance to show the D robbed federally insured banks.
o RULE: A duplicate IS admissible - UNLESS there is a question of authenticity and it
would be unfair to admit the duplicate.
 Case: First State Bank of Denton v. Maryland Casualty (1990)
o Facts: D introduced evidence of a phone call made to the residence of Mills as part of
the claim that the fire which destroyed Mill’s home was intentional
o RULE: A phone call CAN be authenticated.
o Reasoning: FRE 901(b) provides authentication of phone call by introducing evidence
sufficient to authenticate to allow the jury to identify the person.
 Case: Griffin v. State (2011)
o Facts: D claimed that the trial court erred in admitting statement alleging that MySpace
page. Someone other than Ms. Barber could have created the site and posted the
comment. They could have asked her if she created the profile and her testimony
would help to authenticate. Further, they could have obtained information directly
from the site or inspect the computer.
o Alternative Ways Could Have Been Authenticated:
 Asked witness if she did indeed create the profile, Search computer, Get info from
Myspace, Get search warrant, seize computer and link comp to account to her
1. Rules:
a. 601 – 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.
i. Note: Witness competency is treated as a matter of substantive law. State rules about
witness competency will apply in federal court when the court is applying state law.
b. 602 – 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.
c. 603 – 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
2. General Overview:
a. General Requirements:
i. Witness testimony generally admitted if the court is convinced that the child can
understand and swear an oath, and is aware of the consequences of lying, and possess
the capacity of observation and recollection.
ii. Examples:
1. Child who says he won’t lie because Harry Potter wouldn’t like him. If this is
believed then child’s testimony is likely to be found competent.
2. Paranoid Schizophrenic can testify if the judge is convinced he can appreciate the
oath, consequences of lying, and can intelligently recount events.
3. Intoxication: Witness may still be allowed to testify – consider criteria above.
iii. Note: Important change from common law where any mental disability rendered a
witness incompetent.
b. Atheism
i. Early rule was that a devout atheist was not allowed to testify – considered a disability.
1. see Mill’s critique, notes pg 107.
2. Self-convicting absurdity – only allow liars to testify.
ii. Modern Rule – no religious belief required to testify.
1. but (me) there is a requirement of religious oath.
2. Might be able to make a 403 argument that someone who affirmed (and didn’t
take the religious oath) might be unduly prejudiced in eyes of an especially
religious jury.
3. Dead Man’s Statutes; and General Structure of Federal Rules
a. Early Rationale:
i. Don’t allow living to testify to events that the dead can’t speak to.
ii. Critique: Too many cases where this was highly problematic (see notes pg 107) and this
has been eliminated in most states (but not all).
iii. Note: Federal Courts apply state dead man’s statutes when they exist; no such statute
exists at the federal level
b. Modern Rationale:
i. General trend towards making broad allowances for the competency of witnesses.
ii. Modern rationale (FRE 401-403; 601-603) is largely on the side of accurate fact-finding
1. allow in a good amount of testimony by treating people as presumptively
2. then leave it to the jury to weigh the evidence
iii. critique: Placing such high levels of trust in the jury to evaluate witness competency is
difficult to reconcile with the skepticism about juries when it comes to hearsay
1. Depends on the assumption that juries, for whatever reason, are fundamentally
better at weighing in-court witness testimony than any other kind of testimony.
c. Judge-Jury Allocation:
i. judge determines competency of witness, using preponderance of witness standard
1. judges takes on a screening role – eliminating those witnesses where a
reasonable jury could not find that the witness has personal knowledge as
required by 602
ii. jury is expressly to determine (under 104(b)) whether a witness has personal knowledge
(under FRE 602)
iii. note: question of whether a person has adequate perception / memory makes the
testimony conditionally relevant
4. Cases:
a. Hill v Skinner (Ct. of App. OH)
i. Competency: “The nature of his conception of the obligation to tell the truth is of little
importance if he shows that he will fulfill the obligation to speak truthfully as a duty
which he owes a Deity or something held in reverence or regard, and if he has the
intellectual capacity to communicate his observations and experiences”(pg 701)
ii. No de facto age limit for competency of child witness; but there are some pragmatic
b. State ex. rel. Collins v Superior Court (SC AZ; 1982)– Hypnosis Cases – Special Rules Apply
i. Types of Hypnosis:
1. hypnotically induced recall testimony: testimony originally induced by hypnosis
2. hypnotically refreshed witness testimony: testimony regarding alleged facts
originally recalled prior to hypnosis, but which alleged facts may have been
“refreshed” by hypnosis between the time of original recall and the time of
ii. Hold:
1. hypnotically induced recall testimony is per se inadmissible
a. If the memory comes only as the result of hypnosis then not allowed to
b. Rationale: despite a regime broadly in favor of allowing testimony, this
kind is deemed too suspect; witness declared incompetent to testify.
2. but a hypnotized witness is not per se incompetent
a. earlier holdings had held that any hypnosis disqualified the witness.
b. Collins: provided there is evidence that the testimony would have been
given prior to the hypnosis, hypnotic “refreshing” may be allowed.
3. Restrictions:
a. witness may be cross-examined to bring out the fact of hypnosis.
b. Hypnosis must be conduct to minimize contamination
c. Requirement that there be a clear record of witness’ pre-hypnotic
4. rationale: hypnosis is a useful law-enforcement tool; it is not fully trusted but the
law doesn’t want to ban it completely from use in courts.
c. Rock v. Arkansas
i. Facts: D was accused of killing and she was the only eyewitness, allegedly was able to
remember the facts of the killing only after having her memory hypnotically refressed
ii. Because Ark. Excluded all hypnotically refreshed testimony, D was unable to testify
about certain relevant facts, including whether the killing had been accidental; court
held that the exclusion of this evidence violated the Ds right to present a defence.
1. Rule deprived the jury of the testimony of the only witness who was at the scene
and had firsthand knowledge of the facts.
iii. Moreover, the rule infringed upon the accused’s interest in testifying in her own
defense-an interest the court deemed particularly significant as it is the D who is the
target of any criminal prosecution.
iv. Do not require Rule 707 be invalidated because FRE 707 does not implicate any
significant interest of the accused.
d. State v. Moore:
i. Hurd factors are no longer sufficient, a lot of scientists are questioning it (victim was subjected
to hypnosis)
ii. The Hurd guidelines can no longer serve as an effective control for the harmful effects of
hypnosis on the truth seeking function that lies at the heart of the system of justice. It may not
be possible to know whether post hypnotic testimony can ever be as reliable as testimony based
on ordinary recall, so hypnotically refreshed testimony of a W in a criminal trial is generally

Competence: typically 4 capacities: 1) perception, 2) memory, 3) sincerity, and 4) communication - that must be
operating in order for a witness to give truthful testimony.
 Witness must perceive the events or condition described accurately; retain an accurate memory of them through
the time of the testimony and be able to summon the memory then; desire to communicate an accurate rendition
of the events or conditions she perceived; and make such a communication in a way that the trier of fact is likely
to understand. A significant failure in any one of these capacities will lead the witness to testify inaccurately or not
at all

Extrinsic evidence v. not having to bring in evidence

 #602 - personal knowledge
 #603 - oath
 #601, 605, 606 - competence

Also an interpreter must be qualified

Common law strictly limited who could testify before the jury, the federal rules laxed these rules and they take a very
permissive view of who can come in and testify so that a jury can hear from almost every witness that has relevant
information - cross examination is what makes it from being taken advantage of because the jury can determine what
weight or value to give the testimony
 Children and adults who have had competency problems are allowed to testify - no 601 standard for defining
competence; but if states have certain limitations those rules would apply in a diversity case

601 is the default

Evidence is the only things that a judge allows the jury to contemplate during the trial
Rule 605 prohibits absolute prohibition against judge testifying; 606(a) prohibits jurors from testifying in cases they are
sitting on the jury and jurors cannot impeach their verdict with inside influence; no federal evidence rule about a lawyer
testifying at a trial, but ethical rules don’t allow it with very few exceptions


Common law rule verses Modern Evidence Rules

One of the striking contrasts between the early common law and modern rules of evidence is in the area of
competency of witnesses. The common law imposed a number of disabilities that rendered many potential
witnesses incompetent to testify in court. Often in fact, the most knowledgeable people could not testify.
 What used to be an automatic disqualification of a witness now becomes inquiry regarding
impeachment. These now become areas you can ask on cross for impeachment purposes. Examples:
o mental incapacity,
o religious beliefs (limited by FRE 610)
o criminal convictions,
o interested persons,
o spouses
 Therefore, the following are allowed to be witnesses:
o Religious Affiliation does not matter
o Infants: There is no set age where a child witness is automatically declared incompetent.
o Insane People: as long as the insane witness can give testimony on the narrow issue before the
court, they are considered competent on the issue
o Conviction of crime: even if it is perjury
o Interested parties are not automatically disqualified

Presumption of Competency
Every witness is presumed competent to testify, under FRE 601, unless it can be shown that the witness does
not have personal knowledge of the matters about which he is to testify, that he does not have the capacity to
recall, or that he does not understand the duty to testify truthfully.
 The objecting party bears the burden of proof showing the witness is incompetent. The presumption
of competency must be overcome by the objecting party (who is seeking to exclude the testimony.)
 Three elements that must be shown by the objecting party to exclude the testimony
1. Witness does not have personal knowledge of the matters about which he is to testify (witness
observed something)
2. Witness does not have the capacity to recall (witness can remember what he observed and can
communicate what he observed)
3. Witness does not understand the duty to testify truthfully (witness must demonstrate an
appreciation to tell the truth (the oath or affirmation))
 Under the federal rules, these things boil down to two main qualifications for a witness—(1) the
witness must have personal knowledge and (2) the witness must take the oath or affirmation.
 The court decides if the witness is competent (i.e.: whether they are qualified to be a witness) under
FRE 104(a). However, the jury decides whether the personal knowledge requirement is satisfied under
FRE 104(b).
 If a court finds that a witness is incompetent to testify and therefore does not allow them to testify, in
order to get the decision reversed or a new trial, the party must show there was harmful error!

U.S. v. Lightly
Is a person who is legally-determined to be criminally insane qualified to testify?
Lightly is being charged with assault on McKinley. The defense attempted to have McDuffie testify. McDuffie would have testified
that only he and not Lightly had assaulted McKinley. (this would potentially exonerate Lightly)
 The trial court ruled McDuffie incompetent to testify because he had been found to be criminally insane and incompetent
to stand trial, and was subject to hallucinations. The Appeals court found this to be an error and that Lightly is entitled to a
new trial.
 Excluding McDuffie's testimony was not harmless error—the potential testimony would have substantially corroborated
Lightly's testimony.
 The testimony of McDuffie's treating physician indicated that McDuffie had a sufficient memory, that he understood the
oath, and that he could communicate what he saw.
 The district judge chose not to conduct an in camera examination of McDuffie. On this record, it was clearly improper for
the court to disqualify McDuffie from testifying (without first finding he was incompetent at the time of trial).
 The court should have made a finding as to whether the witness was competent at the time the witness testified. This must
occur when the person is being offered as a witness. However, the court did not engage in finding whether he was

 In extreme cases of mental impairment, courts may exclude the testimony as irrelevant under FRE
401; as unfairly prejudicial, misleading, or confusing under FRE 403; as lacking in current personal
knowledge under FRE 602; or as contrary to the interests protected by FRE 611(a).
 When the mental capacity of a proposed witness is questioned, the trial judge does have authority to
order a psychiatric examination. However he must use due care.


As a witness, you must be voluntarily willing and able to take an oath!

If you fail FRE 603 (not taking an oath), YOU CANNOT TESTIFY! You are required to take the oath.

The purpose of the oath or affirmation:

(1) To establish that the witness understands the obligation to tell the truth during testimony and
(2) To subject them to perjury prosecutions for failing to testify truthfully.

Refusing to take an oath in a case might appear quite self-destructive, and it usually is just plain stupid.
However, there may be certain reasons for refusing to swear or to affirm that might make sense, at least to
the witness. For example:
 Some religious persons might refuse to take a religious oath in a non religious context.
 Other people might object to an oath or affirmation before a particular court for political reasons.

U.S. v. Fowler
Fowler refused to either swear or affirm that he would tell the truth or submit to cross-examination. Rule 603,
Federal Rules of Evidence, is clear and simple: "Before testifying, every witness shall be required to declare
that he will testify truthfully, by oath or affirmation . . ." No witness has the right to testify but on penalty of
perjury and subject to cross-examination.
It is important to recognize in this case the D was a pro-se litigant (Did not have an attorney to explain the
importance of an oath) and he was distrustful of government and does not respect the sovereign authority of
the state.
 If you refuse to take the oath, you can be precluded from testifying, and you can also be held in
contempt for doing so.
Difference between oath and affirmation: (FRE 603)
 Oath: the traditional saying: … “So help me God!” on the bible, etc.
 Affirmation: Differs from an oath by eliminating reference to swearing and to divine power. For
religious, or non-religious, reasons, you are allowed to take an affirmation. Courts are flexible in
allowing a witness to have a subjective understanding that you are willing to tell the truth—the specific
wording is not provided.
Ex of affirmation: I understand that I must tell the truth. I agree to testify under penalty of perjury. I
understand that if I testify falsely I may be subject to criminal prosecution.
Ex of something that will not be affirmation: “I am a truthful man. I will not tell a lie.” There is a
problem here, because he fails to acknowledge a legal obligation to tell the truth.


 Children have a Qualified presumption of competence: there is a presumption of competency, but

this presumption only kicks in after a showing (in voire dire) that the child is competent.
 The offering party must justify the qualified presumption showing the child understands their
obligation to tell the truth.
 A lesser showing of capacity is required. In other words, a child is not expected to know what perjury
is, however they do need to know the difference between the truth and a lie.
 After the presumption kicks in, it is now the opposing party’s burden to show the child is not qualified
to be a witness.

Rickets v. Delaware
This is an appeal from a conviction of first degree rape of a five year old girl. The sole issue is whether the trial
court committed reversible error in allowing the minor victim, then six years old, to testify without an
adequate foundation to determine her competency as a witness. The court found that under Rules 601 and
603 of the Delaware Rules of Evidence, the trial court did not err in permitting the child to testify.
 Before testifying, a voir dire examination was conducted during which the child stated that she went to
church, that a lie was a thing that is not true, and that it was a bad thing to tell a lie. She testified
further that if you tell a lie you sometimes get a spanking. She also promised to tell the truth about
everything that she was asked in court. However, in response to questions by the defense attorney
and the court, the witness indicated that she was not sure what heaven was.
 The court ruled that the child was competent to testify because, although she did not understand the
concept of perjury, she knew the difference between truth and falsehood, which was the only test of
competency. This was a sufficient affirmation.
 The child only needs a lesser showing of competency. An adult would be required to understand
perjury, where the child is not as long as the child knows the difference between lying and truth telling.
This same standard may be used for adults who have mental incapacity.

A number of states do not follow the qualified presumption approach and continue to presume incompetency
of children below a certain age. (In NY it is 12)

The lesser standard we apply to children and the Sixth Amendment:

Sixth Amendment entitles, in a criminal case, the D to cross examine the witness against him. However, if a
witnesses capacity is lessened (such as a child) then the ability to answer cross examination questions is
 The SC accepts the notion of the reduced capacity for children and has found it to be consistent with
the Sixth Amendment. Child witnesses (when they were the victims of sexual assault) may be allowed
to testify in ways that reduce the trauma, including not requiring the physical presence of the D and
closed circuit testimony. You can see the clear conflict with the D’s Sixth Amendment rights. However
we are willing to compromise the D’s constitutional rights as to children. Children deserve a certain
level of protection that we do not give other witnesses. We allow a higher level of protection for the
 As to adult witnesses, this SC would probably not find adult witnesses should be allowed to testify
under such circumstances. This exception has been limited to children in sexual assault cases.

NOTE: The Sixth Amendment only applies to criminal cases. However, in a civil case you would refer to the
Due Process Clause of the 5th Amendment, which entitles a D’s ability to cross examine a witness in a civil
case. This is not as strict as the Sixth Amendment, but it is still in existence and it is still a right!


Dead Man’s Statute: This is one exception where an interested party is automatically disqualified. The statute still
exists in about half of state jurisdictions and because it can apply in federal court because of the express language
of FRE 601[2] (in diversity suits that use state law/Eerie doctrine)
 An interested witness cannot testify as to a transaction with a party who is now deceased.
 Rationale for statute is fear of perjury—the interested survivor cannot testify for his interest against
the decedent or the decedent’s representatives about communications or transactions with the
decedent in a civil case unless there is a waiver.
 Ex: The D dies before trial. The survivor (who is bringing the claim) cannot rectify because we are afraid
he will lie because he won’t be contradicted. This basically means the Trier of fact can render a decision
without hearing either side!

Lawyers as Witnesses: This is more of a PR issue than an evidence issue.

Judges as Witnesses: Somewhat surprisingly, the common law did not consider a judge incompetent to testify
in a trial over which the judge was presiding. FRE 605 is explicit in making this one of the few federal grounds
of incompetency.

Jurors as Witnesses & Jury Mistake/Misconduct

 Today the issue rarely arises because jurors who might be called as witnesses are usually identified in
voir dire and excused from serving.
 Nonetheless, FRE 606(a) prohibits testimony by that juror before the jury panel on which he serves.

Rule 606. Competency of Juror as Witness

(a) At the trial.
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror
is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of
the presence of the jury.
(b) Inquiry into validity of verdict or indictment.
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any
other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment
or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether
extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside
influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the
verdict onto the verdict form. A juror's 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.
FRE 606 flatly prohibits the admission of juror testimony to impeach a jury verdict.
 Exceptions—A juror can testify to these matters: (1) "extraneous influence" which influenced the jury
may be testified to; (2) outside influence or (3) mistake.
 In such cases, a juror can only testify to the fact certain facts were heard, they cannot testify to the
effect these facts had on rendering the decision.
 If a court concludes there is a showing of one of the exceptions that impacted the jury’s decision, there
must be a showing of gross incompetency by the jury. In other words, reversible error.
 If you want to catch juror incompetence, you need to find juror incompetence during the voire dire
process. After the jury has returned a verdict, you have to meet the above standard. We entrust to
the jury the obligation, power and duty to make factual determinations. We trust them so much,
that we are not allowed to get into how they make their decisions.
o If misconduct is brought to the courts attention before the verdict is rendered, the court can
look into this
o Voire dire is the entire scheme to evaluate the capability of a jury.
o We have a public trial. It is very difficult for someone in the court room not to notice the jury
“if it was a general problem.”

Problem 6-A “Outside Influence”

In a criminal prosecution, a juror is caught reading the newspaper which had accounts of the trial and
discussed those accounts with others at lunch. The judge also hears that an associate of the defendant talked
with the jury outside of the court and offered what may have been a bribe. During a recess in trial, after jurors
had been excused, the judge questions the juror about both matters. Does FRE 606(a) bar such inquiry?
Answer: This examination of the juror regarding matters that occurred prior to jury deliberations is not barred by
FRE 606(a). The witness, even though a member of the jury, is not testifying "as a witness before that jury in
the trial of the case in which he is sitting as a juror as long as the testimony is taken without the jury being
 But in any case, the juror may be questioned during the trial regarding jury misconduct and that subject-
matter of questioning is not barred by 606(a).
 Note further that the inquiry is also not barred by 606(b), since 606(b) only kicks in after the verdict is
 If the sitting juror's substantive testimony is actually needed, one possibility would be to excuse them
from the jury, and allow them to testify, provided that enough jurors remain to render a proper
 606(b) does not forbid the "polling" of the jury, i.e., asking them if the verdict that has been read is in
fact their unanimous verdict. But questions after the reading of the verdict generally fall within the
language of the Rule, which precludes the official questioning of the jury or use of their written
 After the verdict is rendered, it is not unethical for counsel informally to interview the jury. You may
even want to do so simply to learn what works and what does not. However, such questioning is
increasingly being prohibited by statute or local court rules.

Tanner v. U.S.
Petitioners argue that the District Court erred in refusing to admit juror testimony at a post-verdict hearing on
juror intoxication during the trial. Several of the jurors consumed alcohol during the lunch breaks at various
times throughout the trial, causing them to sleep through the afternoons.
 The court is taking as skeptical view of the facts—there are important policy reasons for 606(b). We
have a perfectly good remedy. If things are as bad as people say, don’t you think someone would
have said something DURING the trial and not 5 days after the verdict was rendered! If someone
would have brought this to the court’s attention during trial, it would have been fine! The jurors could
have been questioned under oath, and if believed all of these people were doing drugs or were
intoxicated, the court would have declared a mistrial.
 The District Court concluded that juror testimony on intoxication was inadmissible under FRE 606(b)
to impeach the jury's verdict.
 The District Court invited petitioners to call any non-juror witnesses, such as courtroom personnel, in
support of the motion for new trial.

The near-universal and firmly established common-law rule in the United States flatly prohibits the admission
of juror testimony to impeach a jury verdict.
 Exceptions to the common-law rule are recognized only in situations in which an "extraneous
influence" was alleged to have affected the jury.
 Allegations of the physical or mental incompetence of a juror is "internal" rather than "external"
matters and therefore not admissible to impeach juror testimony.
 Drugs or alcohol voluntarily ingested by a juror is by no means an outside influence.
 Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days,
weeks, or months after the verdict, seriously disrupt the finality of the process. Moreover, full and
frank discussion in the jury room is encouraged—jurors' willingness to return an unpopular verdict, and
the community's trust in a system that relies on the decisions of laypeople would all be undermined by
a barrage of post verdict scrutiny of internal juror conduct.
 Even if the court did conclude this was an external matter, the court did not think the petitioner’s met
the standard.

Gross or extreme incompetency (certified insanity): There has to be an extreme showing of gross
incompetency by the jury. This is the only exception to 606(b).
 The allegations did not suffice to bring this case under the common-law exception allowing post verdict
inquiry when an extremely strong showing of incompetency has been made.

Sixth Amendment Implications:

The Sixth and Fifth Amendment give you an entitlement to a rational process. This Court has recognized that a
defendant has a right to "a tribunal both impartial and mentally competent to afford a hearing.” However
the court did not err in deciding that an additional post-verdict evidentiary hearing was unnecessary.
 The lesson to be learned here is that you must catch these things as they occur. The trial court is
much more likely to grant a mistrial under circumstances like this, than to grant a new trial when
matters come out after the verdict. That is just the way things are.

The Situations From Hell:

1. Tossing the Coin: Jury flips of a coin to decide the verdict (manner of reaching a verdict, therefore jury
cannot testify to this after the verdict has been rendered)
 A strong argument can be made that even the toss of the coin is a "manner of reaching the
verdict" question and, thus, that inquiry into it by juror testimony or affidavits is barred by FRE
 Commentators have argued that such a method of reaching a verdict constitutes a "denial of a
rational process" and is thus subject to inquiry, and that flipping a coin is arguably the
introduction of "extraneous" information into the jury room.
 But, scary as this thought is, (express language of the Rule may in fact preclude jury testimony or
affidavits to prove this, although I certainly think that any rational court would grant a new trial
upon hearing of such an occurrence).
2. Racisim: Some courts have ruled that bias cannot be explored through post-verdict juror testimony or
affidavits, but others hold that bias can be considered an "outside influence" and thus properly
inquired into under FRE 606(b).
 You cannot use jury testimony after the verdict to show someone was racist. However if after
trial, someone does acts that shows he is a racist, you can use this as evidence to show a jury
member lied during voir dire and this will be grounds for a new trial.
3. Knowledge which is not within the common knowledge of jurors. Extraneous prejudicial information.
When one juror knows something other jurors do not.

Grounds for reversal of the jury verdict that fall completely outside of FRE 606(b):
 Failure to follow instructions, although this cannot be proved by jury testimony or affidavits, but may
be inferred by the court in granting a new trial motion. (See problem C)
 Knowledge and opinion which are beyond the lay knowledge and considered expert. This is not
“acceptable knowledge in a jury room.”

Problem 6-B “Refusal to take the stand”

Atkins is convicted of unlawful possession of narcotics at a trial in which he did not testify to his own defense.
A week after trial, the judge receives a letter from a juror that says the jury violated the judges instructions
because it considered Adkin’s refusal to take the stand as an admission of guilt. May the juror be called to
testify on the letter?
Answer: Under both prior federal law and FRE 606(b), evidence is generally excluded that one or more jurors
ignored or misunderstood the instructions of the court. Courts have also refused to receive evidence that
one or more jurors held it against the accused that he failed to take the stand. This is internal to the jury.
 The letter also may not be received. The last sentence of FRE 606(b) excludes affidavits or other
evidence of any statement by a juror about which he would be precluded from testifying.
 However, if other evidence shows that jurors ignored the instructions, then that may provide the
basis for reversal. You cannot admit internal views of the jury after the verdict has been rendered.
 It is important to realize that if this information would have been determined and brought to the
court’s attention prior to the rendering of the verdict, the judge could have questioned the jury about
it and possibly declared a mistrial.

Problem 6-C “ The $800,000 Jury Error”

The instruction as it should be understood:
 Damages are the difference between fair market value of the farm and the redemption cost plus the
mortgage balance on the property. ($90,000)
 The instruction as the jury may have understood it: Damages are the difference between fair market
value of the farm and the redemption cost, plus the mortgage balance on the property. ($890,000)
Upon seeing the jury interpreted the instructions wrong, the attorney obtains affidavits from the jurors saying
they misunderstood the instructions.
1. If the judge agrees that the jury erred, should she grant a new trial? YES.
2. Does FRE 606(b) allow such affidavits? NO!
The affidavits of the jurors arguably describe "the effect of anything upon his or any other juror's mind or
emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental
processes in connection therewith," which is prohibited by the rule.
 Jury miscalculation of damages or misunderstanding of the court's instructions is generally
considered to be the type of error that cannot be challenged under FRE 606(b).
 For jury errors of this type, it is sometimes possible to sidestep the proscription of FRE 606(b) and have
the judgment reversed on other grounds, such as insufficiency of the evidence to support the verdict.
 WAY TO CORRECT THIS INJUSTICE: Note that while you cannot ask the jurors about misunderstanding
the instructions, you can nonetheless order a new trial based on a finding that the jury clearly failed to
follow its instructions, (this cannot be proved by jury testimony or affidavits, but may be inferred by
the court in granting a new trial motion) or order remittitur on the ground that the award is excessive.
 Do not confuse the language in Rule 608 that says “whether there was any mistake in entering the
verdict into the verdict form” with this. This only applies to where the jury for example found a
defendant “not liable” but wrote “liable” on the verdict form. In this case, the jury meant $890,000
and wrote $890,000. Misconstruing jury instructions does not fall into this exception.

PROBLEM 6-D: “The Jury View”

In a personal injury action arising out of a car accident, a verdict is returned for the P. After trial, counsel of
the D finds out the 2 jurors went to the accident scene on a fact finding mission. At a hearing for a motion for
a new trial, may the defense attorney make inquiry of the two jurors regarding this report?
Answer: Evidence about unauthorized jury views is generally allowed [i.e., it is not barred by FRE 606(b)].
Unauthorized views fit the exception to the rule for "extraneous prejudicial information [that] was improperly
brought to the jury's attention."
 Factual knowledge was not acquired during the receipt of evidence in the court room is extraneous
prejudicial information and you may therefore use juror testimony to establish that testimony was
received by the jury.
 You can use this information to show the jury received prejudicial information. However you cannot
use jury testimony to establish the effect this extraneous prejudicial information had on the jury.
 Before you can reverse this ruling, you still need to establish if the information rose to reversible error.
The court still must make a finding that the case resulted in a different verdict in order for the verdict
to be reversed.

PROBLEM 6-E: “The Bomber”

Jones is convicted of detonating an explosive device in a public building. Afterwards, her lawyer is told that
one juror is willing to testify that another informed the jury he was a demolitions expert in the Army and that
the type of bomb Jones used was powerful enough to kill anyone within 20 feet, even though no injuries were
inflicted by the explosion. If Jones moves for a new trial, may she offer such [juror] testimony in support of
the motion?
Answer: YES
If so, may the prosecutor call other jurors to testify that this information had no influence on their votes? NO.
Court must Balance "extraneous prejudicial information" and "outside influence," which are bad, against
"some sharing of personal knowledge and experience by jurors [which] is expected and proper".
 The answer depends on how directly the evidence bears on the immediate controversy and how
prejudicial the information is in the context of the particular case. Courts are much more likely to
admit evidence regarding information which pertains to the immediate parties or controversy.
 This opinion, which is highly specialized in nature, and is of sufficient prejucide to justify receipt of
juror testimony regarding what was said—NOT the effect of what was said.
 However, although the information is highly prejudicial, it is unlikely this was reversible error. It most
likely did not ultimately change the outcome of the trial

Problem 6-F “The Peacock’s Tale”

Brown, a part-time tax preparer, is charged with preparing and presenting fraudulent income and tax returns
on behalf of his clients. At trial, the government offers testimony of an IRS agent named Peacock that she
audited 160 returns prepared by Brown and that 95% of them contained overstated deductions. She based
this information she received from people for whom the returns were prepared. Is her testimony
If the testimony is being offered substantively, then there are two types of Personal Knowledge required:
(1) Personal knowledge that the statements were made or
(2) Personal knowledge of the truth of the contents of the statements.
If the testimony is being offered for a non-truth use, the only personal knowledge you need is that the
statements were made.
 Court ended up excluding the testimony saying it was hearsay
 It can be argued that the court reached the right result for the wrong reason. A better rationale for the
opinion might be that the witness lacked the personal knowledge necessary to support her testimony.
(FRE 602) Here we need the substantive contents of the statements, which is the personal knowledge
of the clients, not the IRS agent. The prosecutor should have just brought in the actual clients who had
personal knowledge that this happened.
 If we classify her as an expert (under FRE 703), this would be admissible under her opinion. If she were
an expert, she could rely on the facts, such as out-of court statements of tax payers if they were found
to be of a type reasonably relied on by experts in that field.
 201 – Judicial Notice of Adjudicative Facts
o (a) Scope of Rule. This rule governs only judicial notice of adjudicative facts
 Note that 201(a) does not say that a judge can only notice adjudicative facts.
It just says that is all that is covered by the rule. Notice of legislative facts is
o (b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable
dispute in that it is either
 (1) generally known within the territorial jurisdiction of the trial court
 OR (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned
 note: the disjunctive structure of the rule. Very broad.
o (c) When Discretionary. A court may take judicial notice, whether requested or not.
o (d) When Mandatory. A court shall take judicial notice if requested by a party and
supplied with the necessary information.
 Presumably the standard if preponderance of the evidence.
 This is a fairly low standard to meet in many cases.
o (e) Opportunity to be Heard.
o (f) Timing.
o (g) Instructing the Jury. In a civil action or proceedings, the court shall instruct the
jury to accept as conclusive any fact judicially noticed. In a criminal case, the court
shall instruct the jury that it may, but is not required to, accept as conclusive any
fact judicially noticed.
 See State v Lawrence
 General Themes, Main Points:
o Adjudicative vs. Legislative Facts:
 Adjudicative Facts:
 The who, what, when, where, why, and how of the case – very
narrow set of specific facts
 McCormick: historical facts pertaining to the incident which gave rise
to the lawsuit.
 Paradigm Case: What day of the week was July 3, 1985? – Look it up
in a calendar.
 Legislative Facts:
 Broader conclusion about the way the world is
 McCormick: legislative facts are policy judgments and the factual
grounds for policy judgments
 E.g. Whether segregated schooling harms minority children (Brown v
Board); See also Collins (hypnosis)
 Note: FRE 201 applies only to adjudicative facts; there are no restrictions
placed on the legislative facts that a court can take notice of.
 Even though legislative facts are crucial for the disposition of many
 Is this a matter of policy or of principle?
o Critique: hard to see how this is justifiable for something that
is so vital, and confused, to be unregulated.
o But: hard to see how it would be regulated. Possibly require
preponderance of the evidence but that might not really help,
and is still subjective.
o Varcoe: “the doctrine of judicial notice is one of the oldest and most valuable
constituents of our jurisprudence”(744.1).
o Rationale for Judicial Notice:
 Administrative benefits: saves the court time, money, and energy to be able
to accept as true certain undisputed or undisputable facts.
 Advisory Committee Notes: Descartes
 “The judicial process cannot construct every case from scratch, like
Descartes creating a world based on the postulate Cogito, ergo sum.
These items could not possibly be introduced into evidence, and no
one suggests that they should be”(pg 1033).
 Some things are so obvious, and incontrovertible, that a judge can
take notice of them without utilizing evidentiary procedures. This is to
address the Cartesian idea that a first principle must be required.
Some things, according to FRE, are self-evident.
o When in doubt…
 Court can’t take judicial notice if there is any reasonable dispute about the
fact being noticed…
 Example: Issues of statutory interpretation.
 Allocating Notice:
o Judge – Jury Allocation
 Note: that judicial notice is another example of the allocation of decision-
making responsibility between the judge and the jury. Similar to 104(a),
104(b) problem – this is central to all of evidence law.
 Jury Notice:
 Yes. There is a tacit recognition under FRE that the jury will have to
assume as true many things that aren’t formally presented to them.
 Worry: Jury notice is implicit and unstated; judicial notice by court is
made explicit, entered into the record.
 See Higgins v Los Angeles Gas & Electric Co (pg 751, notes pg 115).
o Appellate Court – District Court:
 Appellate court can take notice of facts that the trial court could have taken
judicial notice of.
 Rationale: the reason for the appellate court to give deference to trial court
in findings of fact is that the trial court fact-finders have a “hot” record – they
actually see the evidence; but when we are talking about judicial notice (as
with questions of law) there is no reason to have deference to the trial court
– the whole point is that the thing is “known”, with or without the record.
o Criminal Trial – Civil Trial: see State v Lawrence
o Judicial Notice of Laws:
 Judge can take notice of the law with some restrictions…
 E.g., foreign law – probably will require a presentation of foreign law to the
 De La Cruz v. City of Los Angeles
o Facts: D was charged with driving with a suspended license. One of the elements of
the crime is that the defendant drives on a “highway.” The trial court instructed the
jury that “[i]t is clear” that the road Fielding drove on was a highway. The jury
convicted Fielding.
o Rule: A court may take judicial notice of geographical facts if they were not
explicitly before the trial court, but every person in the courtroom knew “perfectly
well what the character of the location was.”
 A court may take judicial notice of geographical facts if they were not before
the trial court, but are deemed to have been brought to the attention of the
court because every person in the courtroom knew “perfectly well what the
character of the location was.” This includes the distances between two
places as well as maps. In this case, the court takes judicial notice that
Lankershim Boulevard is in the neighborhood of the police station because
the trial court knew of the general location of the accident and therefore it
was at issue at trial. The trial took place in nearby Burbank and the trial judge
acknowledged that he knew of Lankershim Boulevard and that it was close to
the police station. Moreover, the court determines that because of the
location, a jury could infer that Wicks was stopping by the police station after
the retirement party before he went home.
 Fielding v. State
o Rule: In a criminal case, a court may not unambiguously instruct a jury that a
judicially noticed fact is conclusive. A court is to instruct the jury that it may, but is
not required to, accept a judicially noticed fact as conclusive. In this case, the jury
instruction that the road in question is conclusively a highway was improper and
amounted to a directed verdict for the prosecution on that issue. This is in violation
of Fielding’s right to have a jury decide every element of the crime.
 U.S. v. Amado-Nunez
o Rule: There are certain background or evaluative facts that are so commonly
known that they do not need to be judicially noticed to be taken as true.
o Facts: D was stopped at customs checkpoint at the airport in Puerto Rico. The
customs agent found stamps in his luggage that looked suspicious and were
eventually determined to be counterfeit. D was charged with transporting
counterfeit tax stamps in interstate or foreign commerce. One of the elements of
the crime is that the stamps were actually transported in interstate or foreign
commerce. Although the indictment stated that D had arrived in Puerto Rico on a
flight from the Dominican Republic, the prosecution neglected to prove this point at
trial. The trial court convicted D and he appealed on the grounds that the evidence
did not establish the interstate or foreign commerce element of the transportation
o Analysis: There are certain background or evaluative facts that are so commonly
known that they do not need to be judicially noticed to be taken as true. The
proposition that formal customs inspections are not for domestic passengers, but
only for passengers arriving from foreign countries is one of these commonly known
facts. This fact is known to anyone who has ever flown as well as many others who
have met people at an airport or simply watched films or television about air travel.
As a result, although it was not proven at trial that Amado-Nunez arrived in Puerto
Rico on a flight from the Dominican Republic, the trial court correctly inferred that
because Amado-Nunez went through customs upon his arrival at the airport in
Puerto Rico, he arrived on a flight from another country. On account of this
inference, the interstate or foreign commerce element of the crime is established.
 Varcoe v Lee:
o Overview:
 P charged with violating a city ordnance that forbade speeds in excess of 15 mph in a
business district?
 Issue: Can the trial court take notice of the accident area as being in a business district?
o Hold: Yes
o Analysis:
 First formulation for judicial notice requirements: (see 737.4, notes pg 110-111)
 must be a matter of common and general knowledge to persons familiar with the
particular issue in question
 must be known – well established and authoritatively settled, not doubtful or
 must be known within the territorial jurisdiction of the court
 Brewer restatement: a fact can be judicially noticed if and only if it is known as a
matter of common and general knowledge…AND is known within the limits of the
jurisdiction of the court
 Second formulation (abbreviated) of judicial notice requirements: (see pg 738, notes pg 111)
 fact can be noticed if and only if..
o the fact is one of common, everyday knowledge in that jurisdiction which
everyone of average intelligence and knowledge of things about him can
presumed to know
o AND that fact is certain and indisputable
 Brewer: this is just an attempt at economy – restate the rule in a shorter version…
 Compare FRE 201(b): Fact judicially noticeable if it is…
 generally known within the territorial jurisdiction of the trial court
 OR capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned
 see notes pg 111 for more but the FRE and Varcoe are more or less the same…
 biggest difference: FRE provides a whole set of procedures and allocations of power
as a formal part of the rule
 See Rule (above)
 State v Lawrence
o Overview: grand larceny case; value of stolen car clearly exceeded $50 and prosecution, even though
given a chance to present evidence as to this fact, asked the court to take notice of it.
o Hold: On appeal D’s conviction was overturned. Cannot take judicial notice of any fact which is an
element of the crime charged (741).
o Analysis:
 No dispute that the value of the car was greater than $50. What the court was really saying
was that the D has a right to have the jury be irrational in favor of the D
 “under our jury system is it is traditional that juries can and do sometimes make
findings that are not based on logic, nor even on common sense”
 Note: This seems consonant with Souter’s reasoning in Old Chief
o Souter: by and large the prosecution can put on the kind of evidence it
wants, even if the other party is willing to stipulate
o rationale: want the prosecution to be able to appeal to the non-rational
parts of the jury
 Critique: Not consistent with FRE 102
 Goal of FRE 102: goal is to ascertain truth and have proceedings justly determined
 if jury is to be allowed to make irrational fact findings (and thus judge can’t take
judicial notice of an element of a crime) then we’ve thrown truth out the window
 Rationale for the Rule:
 Slippery Slope Argument by the Court.
 If the court can judicially one element of the crime then why not two? Why not all
elements of the crime? Then there might the possibility of judicially noticed guilt:
summary judgment in favor of the prosecution. Clearly unconstitutional.
 Higgins v Los Angeles Gas & Electric
o Flashlight Case. Example of necessity of providing jury instructions – so that they don’t improperly
take notice (in this case as to how to use the flashlight)
 FRE 701 - Opinion Testimony by a Lay Witness:
o “Lay” Witness opinions are limited to those that are:
 (a) Rationally based on their perception;
 (b) Helpful to a clear understanding of their testimony; &
 (c) Not based on scientific, technical or specialized knowledge.
o Note: In questioning witness, you always have to lay the foundation for personal
knowledge and put them at the scene.
 Example - testimony: “he was driving carelessly”
 Inadmissible -> Should provide more specific facts about how he was
driving, going too fast, not looking at road, on wrong side of the road.
 Goal: Give the party harmed by the opinion a chance to object to specific
 Example - testimony: “he was driving too fast”
 Admissible -> It is based on perception and is helpful. There is not likely
going to be much better information.
 Lay people have basis in perception to make judgment about someone going
too fast
o Case: Commonwealth v. Holden (1957) - (Lay interpretation of action is NOT proper
opinion testimony)
 Facts: Jones was asked whether Holden had winked at him and the prosecution
tried to admit the wink as a request for an alibi.
 RULE: A statement of interpretation of a D’s action may NOT be admitted as
proper opinion testimony.
 Analysis: Jones’ interpretation of the wink was that Holden wanted an alibi and
wanted to have his actions covered up. BUT - it is unclear whether the wink was
actually meant to convey a message or whether Holden merely had something in
his eye.
o Case: Virgin Islands v. Knight (1993) - (Lay witness testimony should be based on
firsthand knowledge)
 Facts: Knight (D) was beating Miller with a gun when it went off & killed Miller.
Knight admitted he was beating Miller, but claimed the gun went off accidentally
and introduced an eye witness and a police officer to support this.
 RULE: A lay witness testifying MUST have firsthand knowledge of the facts about
which he is testifying.
 A lay witness’s testimony IS admissible - IF it is rationally based on the witness’s
perception AND is helpful to a clear understanding of the testimony or a fact at
issue. The witness must have firsthand knowledge as the basis for his opinion.
 Here - The eyewitness had firsthand knowledge as he personally observed
the struggle & allowing this testimony would have allowed the jury to
understand the witness’s story. But, the police officer's opinion was
properly excluded – because he did NOT have firsthand knowledge of how
the accident occurred.
o Note - a statement may need to cross multiple hurdles - for example, it may need to
pass hearsay and opinion.
Hypo: Testimony: Just before he died, an injured passenger screamed, “Oh my
God! Joe, it’s all your fault!” The passenger’s statement is offered to prove that
Joe was driving carelessly.
 Crosses hearsay with Excited Utterance or Dying Declaration and possibility
opinion since it’s the best we can do now that the person is dead.
 FRE v. Common law: [ Federal rules loosen things up! ]
o CL Approach:
 (1) Expert is qualified by training or experience;
 (2) Facts on which the expert will base his opinion must be put into evidence;
 (3) It is necessary to specify facts upon which the expert relies in hypotheticals;
 (4) Cannot have ultimate issue testimony
 Reasoning: Gives jury more autonomy in evaluating experts opinion
o FRE Approach:
 FRE 703 - Basis facts do NOT need to be put into evidence - IF it’s a type upon
which an expert can reasonably rely.
 FRE 705 - Expert MAY give opinion without first testifying to the underlying basis.
 FRE 704 - 704(a) - Allows ultimate issue testimony (704(b) - UNLESS it is about the
D’s mental state or legal criteria)
o Cf. CL v. Federal
 In Federal, basis facts need not be put into evidence. [FRE 703]
 In Federal, basis facts need not be specified before expert provides his opinion
(unless judge requires it). [FRE 705]
 In Federal, ultimate issue testimony is allowed (unless about D's mental state or
legal criteria) [FRE 704(a)]
 FRE 702 - Opinion Testimony by an Expert:
o When scientific, technical or specialized knowledge can help the trier of fact to
understand an issue -> a witness qualified as an expert CAN give his opinion – IF:
 (1) it’s based on sufficient facts or data;
 (2) it’s the product of reliable principles & methods;
 (3) the witness has applied the principles & methods to the case.
o Case: State v. Odom (1989) - (Expert CAN give opinion based on specialized knowledge)
 Facts: In drug case, an expert with extensive experience in drug arrests gave his
opinion that D possessed the substances for distribution. D appealed, saying
testimony was improper because it embraced an ultimate issue of his guilt, which
should be decided by the jury.
 RULE: Expert witness MAY testify about areas of specialized knowledge – (even if
the opinion embraces an ultimate issue for the jury).
 Guidelines:
 (1) The expert should base his opinion testimony solely on facts in evidence.
 (2) The basis for the expert's opinion should be specified by use of
hypothetical questions.
 (3) Where possible, the question should avoid use of the statutory language
that defines the offense.
 Note: The opinion of a qualified expert MAY be presented to the jury - IF it will
genuinely assist the jury in comprehending the evidence and determining the
issues of fact. As long as expert does not express his opinion of the D’s guilt, but
characterizes the D’s conduct based on the facts in light of his specialized
knowledge, the opinion is NOT objectionable. Here - harmless error that
prosecution used Odom's name in question.
 CL - Facts supporting expert’s opinion must be placed into evidence; hypo must
name facts on which expert relies; and expert cannot testify in terms of legal
o Hypo - Suppose the prosecutor asked the following question:
 "(1) Based on your investigation, is it your opinion that (2) Wanda Wilson
possessed a (3) counterfeit substance with intent to distribute in violation of (4)
New Jersey Penal Code § 3298?"
 (1) "Based on your investigation" goes outside the facts in evidence and one
of the Odom guidelines is to restrict opinion testimony solely on facts in
evidence. (guideline 1)
 (2) "Wanda Wilson" - violates Odom guideline about only using hypothetical
questions - no longer hypo if he names D (guideline 2)
 (3) "counterfeit substance" - statutory language - there is probably a statute
or set of statutes that define what that is, so no layman juror could
reasonably know what it is. (guideline 3)
 (4) "ultimate conclusion" - if we are in a jdxn that follows 704, specifically
704(b), this is prohibited.
 FRE 703 - Bases of Opinion Testimony by Experts (Hearsay via mouth of Expert)
o The facts or data the expert bases his opinion or inference on MAY be those perceived
or made known to the expert at or before the hearing need NOT be admissible in
evidence (may be inadmissible hearsay) in order for the opinion to be admitted - IF it is
the type reasonably relied on by experts in the field.
o 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” the prejudicial value.
 Rationale - if the facts are good enough for the experts to make decisions in the
field, they are good enough to base testimony upon
 Experts MAY testify based on facts not in evidence.
 Experts MAY rely on opinions of other experts - as long as they are a type
reasonably relied on in the expert’s field.
o United States v Brown (1999-pg 786)-(Experts CAN Base Opinion On Information
Reasonably Relied Upon In The Field, Including Opinions Of Others)
 DEA agent testified to the value of drugs in D’s luggage, based on information
provided by another DEA agent and DEA price list.
 RULE: expert witness MAY express opinion based on hearsay from Regularly
Relied-Upon Sources.
 FRE 703 allows for experts to rely on evidence that is a type reasonably relied
upon by experts in the field. Here - DEA agent specifically testified that his
opinion was based on his experiences & the expertise & info of the other DEA
agent. He testified that experts in the field regularly rely on intelligence
authorities of other countries to determine drug values.
 Pre-Crawford decision - Also held that Confrontation Clause was NOT Violated -
b/c: Hearsay evidence that was Relied on Fell into Firmly Rooted Exception.
 Crawford: Expectation of prosecutorial use is strong, therefore appears to be
“Testimonial.” Counter: Not offered for truth of matter asserted, thus NOT
testimonial or as in Gardeley that it’s being used to establish the basis for the
charges & therefore it is NOT being used for its truth. Moreover, NOT the type of
hearsay that is Formalized, like a deposition or prior testimony or affidavit.
o U.S. v Tran Trong Cuong (pg 789)-(Opinion based on Opinion = Usually OK)
 In a case for unlawful prescription of drugs, expert doctor testified to the
qualifications of another doctor who had prepared a report of similar findings.
 RULE: an expert CAN base his opinion on hearsay evidence - IF it is the type
reasonably relied on by experts in the field (FRE 703).
 It is Impermissible for an expert to bolster his opinion this way, w/o the other
expert being called as a witness OR his report being put into evidence. The report
was prepared in anticipation of litigation, so it was a forensic report & thus
“Testimonial”, so D does NOT have the Confrontation right.
o Case: People v. Gardeley (1996) - (CA rule - expert CAN rely on hearsay)
 Facts: In street gang case, to meet the statutory requirement for proof that D
engaged in pattern of criminal activity, the prosecution called a detective gang
expert who based testimony on conversations with the gang members.
 RULE: An expert MAY relate hearsay evidence on which his testimony is based to
protect the jury from improperly considering the testimony as evidence of the
facts related to hearsay. (????)
 Analysis: Hearsay evidence CAN form the basis for an Expert’s Opinion testimony.
An expert MAY describe the inadmissible material that forms the basis of his
opinion. The court has discretion to weigh the probative value vs. the prejudicial
effect. NO CC issue – because not based on truth of matter asserted.
o Hearsay Through the Mouth of an Expert - FRE 703
 Experts CAN Rely on Hearsay - As long as it's a type experts can reasonably rely
on in their field.
 Key addition to rule allows this:
 An expert may base an opinion on facts or data in the case that the expert
has been made aware of or personally observed. If experts in the particular
field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject, they need not be admissible for the opinion to be
admitted. But if the facts or data would otherwise be inadmissible, the
proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect.
 Example: Psychiatrist evaluating claim of lack of capacity on decedent's will using
statements from family.
 FRE 705 - Disclosure of Facts or Data Underlying Expert Opinion:
o Expert MAY give opinion testimony without first testifying to the underlying facts or
data - UNLESS the court requires otherwise.
o The expert MAY in any event be required to disclose the underlying facts or data on
 Examiner MAY ask expert for opinion based on expert’s understanding of case.
No hypo needed, though it’s within judge’s discretion to require examiner to
specify the facts upon which the expert relies.
 Judges have discretion / authority to require hypos.
 FRE 704 - Opinion on Ultimate Issue:
o (a) (Except as provided in Subdivision B) - Testimony in form of opinion is NOT
objectionable just because it embraces ultimate issue to be decided by trier of fact.
 Experts CAN testify to the Ultimate Issue – (unless it is misleading)
o (b) In Criminal Cases - an expert witness CANNOT state an opinion about 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. Issue for the trier or fact, not expert. ->
(Called “Hinckley Amendment”)
 According to Senate Judicial Committee Report - purpose of the amendment
prohibiting ultimate issue testimony about the mental state was: to save
psychiatrists from having to make a leap in logic from medical concepts to legal
concepts. (Mental health experts would be testifying to something outside of
their domain.)
o Expert CANNOT also testify when it involves inadequately explored legal criteria:
 Example - An expert CAN testify about the ultimate issue regarding suicide, BUT
NOT about whether D committed “fraud” or has the capacity to make a will.
 704 CAN be Grounds for Objection - IF the expert is describing intent which is like
giving their opinion of the mental state and ultimate issue.
o Case: US v. Scop (1988) - (Expert CANNOT testify about legal conclusions)
 Facts: In fraud case, the witness testified using legal words to make
undefined/unclear legal conclusions.
 RULE: FRE 704 does NOT allow an expert to express his opinion in statements
which embody legal conclusions.
 Analysis: The expert’s opinions were legal conclusions & were highly prejudicial &
based on his assessment of the credibility of another witness. He should have
described the details of the scheme without saying it was fraudulent - show it was
misleading, and how it strayed from standard practice.
o Scop is Distinguished from Odom – how?
 Odom court ruled witness could testify on ultimate issue (intent); Scop court ruled
witness could not testify on ultimate issue (fraud) -> fraud is different from intent
– because it is inadequately defined legal criteria & needs to be defined, while
intent is much easier to understand.
 Case: Ingram v. McCuiston (1964) - (FRE 403 applies to extensive
o Example of Abuse of Hypothetical Questions: the expert's
opinion was based on extensive hypos based on facts outside the
o RULE: Hypotheticals must ONLY include facts within the record,
& CANNOT rely on opinion testimony of other witnesses.
 United States v. Kristiansen (1999) (Pg. 800) -
o D was arrested for not returning to his halfway house. Expert
testified that he was a cocaine addict & his failure to return was
due to drug use
o RULE: an Expert Witness CANNOT Testify to the Mental State of a
Criminal Defendant - IF the Mental Condition is an Element of the
Crime Charged.
o FRE 704(b) - an Expert CANNOT express an opinion as to whether
or not the D has the requisite mental state to have committed
the crime charged. It IS Permissible to ask expert whether D was
suffering a mental disease at time, but CANNOT ask whether the
individual is unable to appreciate the nature & quality of his
wrongful act. It IS Permissible to ask expert if the person’s mental
condition could have cause him to be unable to appreciate his
o Note – It IS OK to ask if “might have”, “would have”, “could have”
but NOT OK to ask if they “did” or “did not” have the ability to
appreciate right from wrong
 Summary of Federal Rules
o An expert may base an opinion partly on the opinion of another.
o An expert may testify to the ultimate issue, except about mental state.
o Even when the facts are disputed, the expert may base his opinion solely on the facts
favoring one side.
o An expert may base an opinion on facts not in evidence.
o Having an expert review a hypo contrary to undisputed facts is NOT helpful (thus
contrary to 702)
 FRE 702 - Testimony by Experts: (This rule Codifies the Daubert case)
o IF scientific, technological, or other specialized knowledge will assist trier of fact in
understanding evidence or determining fact at issue -> an expert qualified by
knowledge, skill, experience, training or education MAY testify thereto in form of
opinion or otherwise – IF:
 (1) Testimony is based on sufficient facts/data;
 (2) Testimony is product of reliable principles & methods; &
 (3) Witness has applied the principles/methods reliably to the facts of the case at
 Pre-FRE 702, Frye Test = “General Acceptance in Particular Field” -> Admissibility hinges on
whether proffered evidence is more likely than not generally accepted in its particular field.
o Pros: Judges do not know science
o Cons: Easily manipulated by way of broad / narrow definitions of what constitutes the
particular field in question.
 Under Daubert
o Admissibility Under FRE 104(a) (Preponderance) Determined
 Is expert proposing to testify to (1) scientific knowledge that (2) will assist the trier
of fact to understand the issue?
 (Includes preliminary assessment of scientific validity and whether the
science can be applied to the fact at issue)
 Factors:
 Testability
 Error rate
 Standards - Existence and maintenance of standards controlling the
technique's operation
 Peer review and publication
 General acceptance
o Holding:
 (1) Expert evidence must be relevant
 Must relate to an issue in the case ("fit" - empirical basis for evidence must
help answer a fact in dispute)
 (2) Expert must be qualified to testify on subject
 Permissive: "knowledge, skill, experience, training, or education"
 BUT: must be carefully evaluated with regard to the specific testimony
being proffered
 (3) Evidentiary reliability
 Trial courts responsible for examining the methodologies and principles
underlying proffered testimony to determine whether those principles and
methods are sufficiently valid to admit
 Daubert v. Merrell (1993) - (General acceptance is NOT necessary for expert testimony)
o Facts: P alleged a drug produced by D caused birth defects & introduced expert
testimony to support this. The T.C. concluded the P’s evidence did NOT constitute
scientific evidence & would only be admissible if it had a general acceptance in its field.
o RULE: “General Acceptance” is NOT necessary precondition to the admissibility of
scientific evidence under FRE 702 - (IF scientific or technical evidence will assist the trier
of fact -> a witness MAY testify in the form of opinion.)
o Gate-Keeping Responsibility: Trial judges have the responsibility to evaluate the
underlying methods & principles of the expert’s opinion to determine whether they are
more likely than not sufficient (“Reliable” & “Valid”) to support the proper expert
opinion & whether they will assist a trier of fact in understanding the facts.
 (Similar to FRE 104(a) – says that all factual questions of admissibility have to be
decided by a judge.)
 Reliability & Validity Factors:
 (Non-Exhaustive list):
 (1) Testability;
 (2) Error Rate;
 (3) Peer Review and Publication;
 (4) Standards controlling the methodology
 (5) General Acceptance
o Pros:
 Encourages more research – because General Acceptance is NOT the standard &
under Daubert - experts must show basis for the data.
 Under Daubert - expert testimony does NOT have to be based on scientific
evidence (example: how drug dealers operate)
 Allows judge to be gate-keepers
o Con:
 (Inconsistency) Different trial judges could reach different results on the same
 Judges lack expertise - relies on judges to make scientific judgments (ie. decide
whether science is correct or not), rather than scientific community.
 Frye (=Accepted) and Daubert (=Valid) Comparisons:
o Same result when evidence is…
 Accepted and Valid -> Admitted by Both
 Not Accepted and Not Valid -> Excluded by Both
o Accepted and Not Valid (ie. handwriting analysis):
 Inadmissible under Daubert
 Admissible under Frye
o Not Accepted (ie. too new scientific theory) and Valid:
 Admissible under Daubert
 Inadmissible under Frye
o Did Daubert change the nature of the game?
 NO -> Conventional as regards to rules of evidence – because: judges must always
make preliminary admissibility determinations on the more-likely-than-not
standard of FRE 104(a). Determining reliability & validity is similarly a
conventional determination regarding admissibility of preliminary facts.
 YES -> Judges & lawyers must now know about scientific method. This was a case
management decision: it empowered trial courts to make challenging expert
admissibility rulings.
o Did Daubert make it more difficult to get in expert testimony?
 Frye was more conservative for traditional fields / mainstream academic science -
because: it required reaching “General Acceptance”. Allowed less expert
 Daubert is more conservative for non-traditional science - because: those fields
without academic counterparts have historically gotten by on General
 Forensic Scientists: Under Daubert, forensic scientists CANNOT meet the
requisite reliability & validity -> thus, they began arguing they were experts
of technical/specialized knowledge & Daubert does NOT apply, but that the
language of FRE 702 does.
 Note: Courts have ignored Daubert on forensic / criminal side.
 Abuse of Discretion Standard for Overturning
o Definition of AoD: When reasonable judges would disagree on an outcome.
o Case: GE v. Joiner (1997) - (Deference to trial court when reviewing under Daubert)
 Overview: Case set the appellate standard of review as “reversal when there is an
abuse of discretion.”
 Rule: Appeals level judges can only overturn admissibility on expert evidence if
reasonable judges wouldn't ever disagree (ie. no abuse of discretion)
 Held: Appellate courts owe deference to trial court determinations regarding
admissibility of expert evidence/testimony. Abuse of discretion standard on all
evidentiary rulings.
 Counter: Expert testimony's admissibility has nothing to do with the specific
facts of the case, so there is no reason to defer to the trial court when the
scientific issue transcends the case. This can lead to inconsistency and
unfairness - we don’t want different outcomes with different judges.
 Extending Daubert to Non-Scientific Experts (FRE 702 applies to all experts opinion)
o Case: Kumho Tire v. Carmichael (1999) - (Daubert applies to ALL types of expert’s
evidence, including technical & specialized [not just scientific])
 Facts:
 An expert claimed to be able to tell, by visual and tactile inspection, whether
the blow-out of a tire had been caused by a manufacturing defect or by user
abuse (e.g., underinflation).
 He claimed that there were four signs of abuse and that if only two of them
were present, then the blow-out was due to a manufacturing defect.
 Prior to this case, judges were only applying Daubert to only scientific
 Held: Non-scientific expert evidence (i.e., technical or specialized knowledge)
should NOT be treated any differently from scientific expert evidence. Daubert
applies to all experts, though the specific analysis may differ based on expert field.
It’s a flexible inquiry & Daubert factors do NOT constitute an exhaustive checklist.
 702 applies to all expert opinion (no distinction between science, technical,
or other knowledge”
 All expert testimony is subject to this gatekeeping record
 Before Kumho, lawyer could say, this non-scientific expert testimony doesn’t
pass Daubert - now it doesn’t have to.
 Basic question: Are the methods underlying expert opinion Reliable & Valid?
 Here - Daubert applies to expert testifying based on experience as to
whether tire blew by misuse or manufacturing defect.
 Note: Experience-based testimony is still good enough in certain instances,
where it is not practical or reasonable to scientifically test (See Ellis v. State
(1982) below)
 Problems with Specific Technical Methodology used in Kumho
 No proof that other experts used this 4-factor "tire test"
 No testing or controlled experiments
 Observations were sloppy and inconsistent; explanations changed
o Makes it seem unreliable
 The expert conceded that all 4 signs were present, but claimed they were
o No standard or protocol for saying whether minimal or not. How
would he know, even if he has experience?
 The expert would not offer opinions about things that could have been
verified, such as how many miles the tire had traveled.
o You’d think this expert would be able to tell…
 Conclusion: Doesn't pass Daubert.
 Case: Ellis v. State (1982)
o Facts: The complaining witness lost a newborn calf. To prove that a calf in the
neighbor’s barn was the missing calf, evidence was offered that a cow belonging to the
complainant suckled the calf. Ranchers testified that a cow’s claiming a calf on the open
field was an accepted test of maternity. According to the uncontroverted expert
testimony of lifelong cattlemen who testified at trial, these actions of claiming a calf by
a cow in an open field constitute the accepted test for determining maternal lineage.
o Rule: Although wholly circumstantial, evidence, which showed that, when taken to
complaining witnesses' pasture, allegedly stolen calf was claimed by mother cow in
open field, was sufficient for jury, which found defendant guilty of larceny of domestic
o After Daubert, expertise that is not based on science can still be admitted if it's
sufficiently reliable and not prejudicial
 Factors
 Probative
o Feedback Loop: Experience is likely to give real feedback here; if cows
would let any calf suckle/this wasn't the case, they would have found
this out before
 Inverse Example: Handwriting examiners would not (the fact
that a jury believes you is not feedback that you’re right or
 Prejudicial
o Is a scientific vocabulary being used.
 Case: Weisgram v. Marley (Not in book – But Faigman talked about:
o Overview: After Daubert, Lawyers should know that there is a HIGH THRESHOLD for
Expert Testimony -> So, BE CAREFUL!
o Rule: An appellate court may direct judgment as a matter of law when it determines
that evidence was erroneously admitted at trial, and the remaining evidence does not
make out a sustainable case.
o Reasoning: The expert testimony presented by Weisgram was insufficient to sustain
the jury verdict. Since Daubert, parties are put on notice that their experts’ testimony
must rise to a strict level of reliability to be admissible.
 FRE 706 - Court Appointed Experts
o Court’s discretion
 The trial judge has discretion to ask either party to show cause to why an expert is
not needed
 Judge can request that the parties submit the names of possible experts
 Judge has discretion to appoint an expert of their selection
o Use of
 Commonly used by court when there is a question of whether or not the D is
legally competent to stand trial
o Pros
 Avoid battle of experts
 Some of the best experts won’t agree to be experts for hire
o Common Law: Frye Rule
 General Acceptance: Scientific technique is generally accepted as reliable in the
relevant scientific community
 Criticism
 Too conservative
o Ignores how cutting edge sciences makes breakthroughs because
requires that science reach some level of consensus before it can be
 Too liberal
o Expert testimony without any substantive thresholds
 You can manipulate the Frye test by manipulating he field
o What has to be generally accepted?
 Lack of communication between law language and science
 Three Factors
 Assist the trier of fact
 General acceptance in particular field
 Qualifications
o Compare to Daubert
 Under Frye, judge doesn't need to understand the science. But under Daubert,
the judge needs to evaluate the underlying methods and principles that support
the expert’s testimony
 Court serves an active gate keeping function, don't just defer to scientists—not
universally accepted.
 More Likely Than Not - Judge must find (proponent has the burden) that the
expert opinion is more likely than not:
 Based on reasoning or methodology that is scientifically valid and reliable
 Can properly be applied to the facts of the case
o Relevant; helpful to the jury
 Still subject to 403 scrutiny
 Scope (Kumho Tire)
 Applied to testimony based on technical and other specialized knowledge
o Experience expertise
 Determining reliability—test of reliability is flexible
 Daubert Factors
 Depends on the expert’s particular expertise and the subject of his
o Testing
 Has there been testing and was the method of testing adequate?
o Error Rate
 Have error rates been identified + if so, are they acceptable
o Standards
o Peer reviewed & published
 Not required, but if it hasn't the court should ask why not?
 Red flag; not dispositive
o General Acceptance
 Daubert sometimes admits non-science
 Example: How drug dealers operate – even if not developed by scientific
method, it’s still very helpful.
 Compare to Frye
 More liberal—if field subjects their studies to more testing
 More conservative—in the field of guilds: these groups practice methods,
but don't do rigorous testing
 Appellate standard of review—abuse of discretion
 If the district court didn't make an egregious error in admitting or excluding
expert testimony, then the district court decision will stand on appeal, even
if the appellate court would have decided otherwise if presented with the
question as an original matter
o Forensic Evidence: Evaluating the reliability of testing
 External validity challenge
 Is the task in the study the same as the task in the case
 Level of expertise of the witness in this case the same as the level of
expertise of the expert subjects in the test
 Internal validity challenge
 Something other than the variable being studied caused the difference
o Were the experts more motivated to succeed on the lab test than the
lay participants
 Evaluating the reliability of experience based on experts
 Bias sample; expectation bias; no control group, context
 I.e.—Cop testifies about horizontal gaze test indicating failing a breathalyzer
(all are present)
 Forensic fields where the expert doesn't know the frequency of the identifying
features or the probability of a random match
 Bite mark, firearms, handwriting, fiber matches, microscopic hair matches,
 Possible reforms
 Blind testing, evidence lineup, more research, proficiency tests, exclusion of
evidence. Etc…
 _Handwriting & _Polygraph
 Internal vs. External Validity Challenges of Results:
o Internal: Something other than expertise causes results
 Example: Experts may have a different/greater incentive to perform than lay
people (paid, want to uphold validity of the field)
o External: Even if the experts had a better result than lay people, this cannot be
 Handwriting Identification:
o Signs of Forgery:
 (1) Tremor;
 (2) Blunt Endings;
 (3) Pen Lifts;
 (4) Patching;
 (5) Drawn Appearance;
 (6) Questioned Document Differs from Exemplars (Letter Formation, Baseline, etc)
o How to Test this:
 (1) Have subject forge signatures and compare to natural signature;
 (2) Test proficiency of discovering between forged & not forged signatures and
compare results from lay person and expert
o Case: US v. Saelee (2001) - (Handwriting comparison field has a lack of controlling
standards and thus is NOT admissible under FRE 701 as a lay opinion or FRE 702 as an
 Facts: Government had forensic document analyst compare a sample of D’s hand
printing with the printing that was on the address labels of the drug packages in
 RULE: Forensic document analyst offered to inform the jury of similarities and
differences of a sample of printing is NOT admissible under FRE 701 as a lay
opinion and FRE 702 as an expert.
 Note: Most courts allow it anyways.
 Analysis: Government failed to meet the burden of establishing reliability of
principles and methods underlying handwriting testimony – because they could
not articulate basis for identifying/defining significant characteristics and there is
a lack of controlling standards. Court finds it will be nothing more than some
subjective observations and will likely mislead the jury.
o FRE 901(b)(3) - Compare Samples to see if the Evidence is Authentic (Subject to
 (Enacted Pre-Daubert & still subject to Daubert factors when it involves an expert)
 Note - one way of assessing the validity of document examiner expertise is by
proficiency testing. There is a far higher error rate for hand printing identification
than for signature authentication.
 Polygraph Evidence:
o Majority view: ONLY admissible on stipulation
o Minority view: NOT admissible…NOT even on stipulation.
o CEC § 351.1:
 (a) The results of a polygraph test, the opinion of a polygraph examiner or any
reference to an offer to take, failure to take, or taking of a polygraph examination
shall NOT be admitted into evidence in any criminal proceeding - UNLESS all
parties stipulate to the admission.
 (b) Nothing in this section is intended to exclude from evidence statements made
during a polygraph examination which are otherwise admissible.
o Whether or not polygraph test is good or not, it may still be offered as non-hearsay
evidence for its effect on the listener. (Example: Where D confesses and claims
confession was coerced, prosecution may put in evidence that D flunked polygraph test
as relevant to issue of why D confessed.)
o Case: State v. Porter (1997) - (Polygraph evidence lacks sufficient probative value to be
 Held: Affirms applicability of Daubert standard in determining admissibility of
expert evidence, affirms per se rule against admission of polygraph evidence and
holds that exclusion of polygraph evidence does NOT deprive D of right to due
 Reasoning: Validity of polygraph evidence is questionable & based on theory of a
relationship between deception & certain emotional states, but there is no
standard set of responses that humans are lying. Examinees are asked a series of
questions, some relevant & some control questions. At best, they can only tell
how likely a polygraph is to label accurately a person as deceptive given that he is
o Polygraph Test Rests on 2 Assumptions:
 (1) Relationship between deception and emotional states
 (2) Relationship between those emotional states and physical changes in body
o 3 Polygraph tests:
 (1) Control Question Test (“CQT”): Control tests asks a series of questions -
neutral, relevant and control questions.
 Neutral questions - non-confrontational (Ex: “what’s your name?”)
 Relevant questions - accusatory and addressed at the topic under
investigation (Ex: “did you do it?”) -> a guilty subject is supposed to react to
 Control questions - designed to be the questions on which examinee will lie
(Ex: “did you cheat in school?/ did you ever wish someone harm?”) ->
innocent subjects are supposed to react to these.
o When someone has higher response during the relevant question than
during the control question -> that is a sign of deception. If they’re not
guilty -> they will not lie to the relevant question, but may lie to the
control question.
o Someone trained in countermeasure would likely to use them to
increase arousal during the control question
 Problems: Innocent people may react as if lying - because they are under
stress, including knowledge that relevant question is more important one
(more stressful, naturally) & potential anger about a false accusation.
Assume that innocents will have higher response to control questions &
guilty to relevant questions not borne out in studies.
o Potential False Negative: Good at lying; countermeasures, e.g., biting
 (2) Guilty Knowledge Test: (in footnote to Porter case) - Tests whether examinee
possesses guilty knowledge, e.g., whether examinee recognizes correct answer
from several plausible ones.
 Utilized where guilty person would possess knowledge about facts of crime
that innocent person would not.
 Problems: Innocent person could have knowledge (i.e. due to news
sources); guilty subject could use countermeasures; guilty subject could
forget about the fact in question; innocent subject without knowledge may
have emotional reaction to being falsely accused.
 (3) Directed Lie Test: Ask D to lie to certain question & compare results to
relevant question.
 Problem: The examinee could disobey instructions & NOT lie; likewise, even
if follow directions, may not create a high arousal because not truly lying,
just following directions.
 Sensitivity vs. Specificity: (Look in Appendix A in Professor Park’s Syllabus)
o Sensitivity: Refers to the probability that a test will give a positive result given that the
subject is in fact positive for the condition being tested.
 Correlated to false negative error rate -> when a person that is known to be
positive of the condition being tested tests as negative for that condition
(Example: Drunk person is labeled as sober).
 High Sensitivity = few misses/ low false negative, i.e., few believing-a-lie mistakes.
(Example: Metal detector at airport)
o Specificity: Refers to the probability that a test will give a negative result given that a
person tested is in fact negative for the condition being tested. (Example: The not
drunk person tests as negative for alcohol in their bloodstream).
 Correlated to False Positive Error Rate -> When a person that is known to be
negative of the condition being tested tests as positive for that condition.
(Example: Sober person is labeled as drunk).
 High Specificity = Few false alarms/ low false positives, i.e., few disbelieving-the-
truth mistakes (Example: A not drunk person is determined to be drunk).
o Examples:
 If lie detection method has high false positive error rate -> its specificity is low
 If sensitivity test is 90%, then the false negative error rate is 10%
 If a lie detection test has a 10% false positive error rate, that means that 10% of
the truth tellers who take the test will be designated as liars
 Predictive Values:
o Sensitivity and Specificity - only tell accuracy of testing.
o Predictive Value - depends on a Base Rate among the tested population.
 Predictive Value Negative %: (the total # of negatives divided by the number of
those total # of negatives that were actually negative = Predictive Value
Negative %).
 Predictive Value Positive %: (the total # of positives divided by the number of
those total # of positive that were actually positive = Predictive Value Positive %)
o Example - 990 are actually innocent out of 1000. 90% specificity and 90% sensitivity:
 You have a test for guilt
 99 innocents will test falsely guilty with 891 testing correctly innocent, 990
 9 guiltys will correctly test guilty with 1 falsely testing innocent.
 108 guiltys total, but only 9 of them actually guilty = 90% error rate on predictive
value positive.
o Procedure: Split into actual positive and actual negative. Apply sensitivity to actual
positives and apply specificity to actual negatives. To get predictive value positive, sum
number of positives, actual and false, and then divide actual by total to get predictive
value positive. Same for predictive value negative.
Case: US v. Scheffer (1998)
o Facts: Scheffer (D) was required to submit to drug testing & polygraph testing. His
polygraph test did not show he was lying about taking drugs, but his drug test was
positive. He sought to introduce the polygraph test to show he did not knowingly take
the drugs.
o RULE: Exclusion of polygraph test does NOT abridge the right to present a defense.
o Reasoning: Permissible to exclude polygraph evidence under Military Rules of Evidence
707. A D’s right to present evidence is subject to reasonable restrictions. State &
Federal rule-makers have broad latitude under constitution to exclude evidence.
 Product Rule/Multiplication Rule - Used to determine the probability that every event in a
series of events will occur.
o Independent - When 2 events are Independent -> the probability of the 2 events both
occurring equals the probability of 1 event occurring MULTIPLIED by the probability of
the other event occurring.
 (P-E1 & E2 = P-E1 x P-E2)
 Example: Chance of getting head on a coin toss twice in a row – (½ x ½ = ¼)
o Dependent - When 2 events are Dependent -> the probability of both events occurring
equals the probability of one event occurring X the probability of the other occurring …
given that the first event occurs.
 (P-E1 & E-2 = P-E1 x [ P-E2 | given that E-1 actually occurred ]
o Case: People v. Collins (1968) - (Probability should NOT be admitted when it gives the
jury improper/confusing info)
 Facts: Collins and wife were arrested for robbery and prosecution attempted to
inculpate them based on probabilities from an eyewitness
 RULE: Statistical probability CANNOT be admitted into evidence - when it is:
substantially unfair – AND - may result in the introduction of techniques that
could confuse the jury.
 Note: Use of statistics WOULD confuse the jury here.
 Problems with Evidence:
 (1) Probabilities of each trait lacked foundation;
 (2) Distracted/confused jury from its function of weighing evidence on issue
of guilt;
 (3) Prosecutor’s fallacy-wrong to equate the results to mean that was the
chance they were innocent;
 (4) Math based on false assumption that all the traits at issue are
independent when they might have been not independent, but rather
 (5) Had to assume that the witness was correct and had no chance of error
in describing the characteristics.
 _Random Match Probability: Probability that person selected at random would match trace
evidence as well as suspect.
 _Source Probability Error: Probability that suspect is source of recovered trace evidence.
o Example: Because only 1 person in 10 has red hair, the probability that a certain hair
came from someone other than the defendant is 1 in 10.
 Prosecutor’s Fallacy: Assuming chance of random match is the same as chance of guilt.
o Example: Only 1 person in a million has this type of hair, therefore the probability that
defendant is innocent is 1 in a million.
 Defense Counsel Fallacy - Arguing that random match probability directly tells the chance of
o Example: Because 1 in a million people have the same DNA, on island w/ 8 million
people, the chances of guilt are 1 in 8. (This ignores the prior probability & other
o Common Errors: Assumption that Random Match Probability = Source Probability; that
Source Probability = Guilt Probability.
 Transposition Error: Incorrect assumption that probability of fact 1 given fact 2 always
equals probability of fact 2 given fact 1. Transposition error assumes the 2 are equal.
o Example: Probability of woman being a lawyer given that she’s a SCOTUS justice is NOT
equal to the probability of woman being SCOTUS justice given that she’s a lawyer.
 Bayes Theorem - way to update probabilities in light of new information
o (Prior Odds x Likelihood Ratio = Posterior Odds)
 Prior Odds - Circumstantial evidence that condition exists
 Likelihood Ratio - Probability of a positive result if the patient is actually positive
for the condition (sensitivity rate), divided by the probability of getting a positive
result if the patient does not have the condition.
 (probability of finding new information given the fact is true or false - the
higher the likelihood is, the more probative the evidence is)
 Sensitivity % = Top Number
 False Positive % Rate (Inverse of % of Specificity) = Bottom Number
o (Example: 90% Specificity = 10% False Positive rate)
 Example: If symptoms show that 1 in 4 (25% chance) of having disease and take a
test that’s 100% sensitive, 90% specific, if the test is positive,
 Prior Odds = 1:4
 Likelihood Ratio = Sensitivity/FalsePositiveRate = 100%/10% = 10.
 1 to 4 odds x 10 = 10 to 4 odds (10 divided by 14 = 71%)
o Criticisms: Often use arbitrary prior odds / leads to assumption that posterior
probability is equivalent to guilt- its not, because you have to take into account the
defense's evidence and because it only speaks to likelihood
o Kammer v. Young () (Pg. 884) -
 Held: In paternity case where expert testified to probability for D as genetic match
for child based on statutorily provided Bayes’ Theorem that allowed expert to
assume prior odds of 50%. Prior odds were merely an assumption and did not take
into account any (other) evidence. Likely to mislead the jury. But D had
opportunity to cross-examine expert re: methodology, which was a sufficient
counterbalance to protect D’s DP rights.
 Park: Problem that prior probability is arbitrary. The expert would use this figure
even if there was conclusive evidence that they had slept together. It is not
irrelevant evidence, but it was not used the right way.
 Defense Counsel Should have Said:
 Using your method, you’d get the same probability of paternity even if the
client was infertile- assuming prior probability of 50%
 Nobody can figure the real probability of paternity in the case without taking
into account evidence other than the paternity test
 Forensic Identification:
o Example: Bullet striations ->
 (1) Differences aren’t conclusive (could be random contacts or wear over time);
 (2) Similarities aren’t conclusive (could be coincidences)
o Context Effect - context in which information is presented influences the information of
the interpretation.
o Example - Fingerprints (good method of identification, but not conclusive)
 National Academy of Science reports that there is some evidence that the ridge
patterns are unique, but that doesn’t mean latent prints from two different
people are sufficiently different and they can’t be confused.
 When examining a fingerprint expert, want to show error is possible- can ask
about background, any mistakes, if any other experts have ever disagreed, would
you find out if you were wrong, has he read the NAS report, does he know about
Mayfield case (where top FBI experts misidentified the fingerprints)
o Case: People v. Mountain (1985) - (Blood type has probative value)
 Facts: The trial court allowed evidence of blood type of the assailant to be
introduced, and allowed the prosecution to make reference to the defendants
blood type.
 Rule: There IS probative value in evidence that the blood type of the defendant is
the same as that of the assailant.
 Analysis: Like blood types, evidence of physical characteristics are NOT rendered
inadmissible merely because they are shared by large segments of the population.
When the characteristics are viewed together -> they may have probative value.
 Here - it did NOT Unduly Prejudice the defendant.
 Rule: DNA evidence is generally admissible, although there are questions are technologies
and interpretation of results.
 Anytime multiplying DNA probabilities together, permissible assumption that variables are
independent - (Product Rule). ????????
 Identical Match Fallacy - Even if identical match -> could be coincidental - every person has
unique DNA except for twins, but still chance for random match - because DNA testing does
not test entire sequence, but rather just particular locations.
o Chance is always a factor in considering random match probability
 DNA Evidence Problems:
o Contamination of sample during evidence collection
o Poor lab work - mixing up accused and victim DNA / poor performance on proficiency
test by lab worker / failure to follow protocol / lab error rate/ reliability of labs methods
o Misinterpretation of sample results - prosecutor’s misleading presentation / source
probability / prosecutor’s fallacy / wrong population subgroup used for its probability
o Not taking into account other evidence
o Fraud / tampering
o Fact that lab never proven wrong at trial does NOT mean always right - because lab
evidence is highly influential in swaying jury verdict outcome.
 Evidence of error rate of DNA labs should be admissible - because it can be helpful to know
when they make mistakes - even if only approximate, it could help jurors form being
prejudiced by testimony that the probability of random match is small.
With opinion/expert testimony you are establishing the distinctions between FRE 602 and FRE 701 or FRE 701
and FRE 702.


Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

 Lay Witness opinion is admissible providing:

o That the witness has personal knowledge—the witness observed something that is being
described and can formulate a common sense, rational opinion or inference.
o That the opinion is helpful to the trial of fact
o The witness cannot have a “legal opinion” (i.e.: they cannot say “I believe the defendant was
grossly negligent)

Witnesses Testifying to their subjective opinions

 Lay witnesses are not allowed to testify to their subjective opinions and inferences about what
someone said.
 The lay expressions of opinion or inference may be permitted but only if they are objectionably,
rationally based on perception of a witness and are helpful either to the understanding of the
testimony of the witness on the stand or helpful to the determination of a fact in issue. That is
witnesses are allowed to interpret what their friends told them, but it has to be objectionably,
rationally based.
 The “rationally-based” conclusion by the witness has to be reasonable. The reasonableness depends
on the situation. It will depend a lot on the particular relationship between the parties—a particular
relationship may in fact put a witness in a better position to understand what the person meant and
the conclusion will be rational. (See problem 9-A)

Problem 9-A “It was My Impression”

Cox is on trial for unlawful detonation of explosives. The P calls Cox’s ex-girlfriend who testifies that Cox told
her twice that he would blow up cars for $50 and that he showed her a newspaper account of one of the
bombings giving rise to the present charges. The P asked the ex-girlfriend if Cox admitted to being involved in
the bombing. She answered that he never actually said that but it was her impression that his actions inferred
he had blown it up. The defense objects saying it is opinion and calls for speculation.
Probably the testimony should not be allowed as not rationally based on her perceptions, although the
question is close. Most likely, the witnesses’ understanding will not aid the jury in their understanding of what
Cox said and did.
 The problem is that her rather broad but definite conclusion goes to the heart of the case and rests on
a thin factual basis—intuition more than logic. On a point further from the heart of the case probably
she could express such a conclusion. She might well testify, for example, that she was upset about the
news clipping (a less definite conclusion that must still point toward some involvement by the
 Witnesses are allowed “interpret” what friends told them, but the inference should be stronger than
the one suggested by these facts.
Opposing Argument: It is rationally based on her perceptions based on what she knows about the defendant.
This is a legitimate rational conclusion. These are words that, although were not an outright confession, were
rational, in the context of their relationship meant a confession. If you can establish there was a long term
relationship, and that they communicated in a particular way, such that there was a “code” between the
couple that only they can understand, it is possible the ex girlfriend could come to this conclusion rationally.
In that case, it would be considered a confession that was objectively rational.

Problem 9-B- “The Watchful Neighbor”

There was a car accident between Pinkston and David. Hanson, an eyewitness, is seeking to testify to things
that he has inferred or concluded from what he observed.
 He testifies Pinkston was backing out of her car to take her daughter to ballet lessons.
This is a conclusion, not an observation, because how could he know they were going to ballet lessons?
However, it is not important to the case.
 He testifies the pickup (Davis’s car) plowed right into the side of the car.
This is a point of substantive importance—suggesting Davis was at fault: “plowed” seems to get you
closer to a conclusion. However, this is a rationally based conclusion as long as an attorney lays the
foundation that the witness had position to determine how the accident occurred, that he drives all
the time and has a normal level of experience with driving, etc.
 He testifies the pickup was going well over 35 mph.
This could also be a conclusion, however it is rational--a lay person who drives all the time would be
able to answer that; Driving at such speed, and seeing others doing so, are matters of common
experience and well within the capacity of grown lay persons to estimate (FRE 701, FRE 702)
 He testifies you can only go 20 mph at a school zone which is where the car was. This is a question of
law, which the witness cannot properly testify to. This is closer to expert legal testimony, but you can
show this is within the normal level of knowledge a reasonable adult would have, if you can prove
there are lots of posted signs that say this, or that everyone who takes the driving test must answer
this question then you may establish this is within the normal knowledge of a lay person.
 He testifies he would “guess” the driver of the car is Davis-- he is not sure if the person he saw driving
the pickup is in the court room. If the witness can do no more than guess, he may be limited to
describing the driver the best he can—he cannot guess. He needs to stick to what he knows or thinks
to be true. A lay person has the capability of recognizing people even though there has been some
changes in their appearance. Therefore, if the witness can describe certain characteristics which
describe Davis, this is ok.
 He testifies there was a strong smell of pot and was sure the driver was smoking pot.
This could go either way. This could be in the personal knowledge of a lay person (but think of how
this may go over with a jury). However, the way pot smells is not considered a part of common human
experience—i.e.: the smell of marijuana requires expertise.
 He testifies Pinkerson had a “guilty look”
The witness can testify to the apparent emotional state of Davis, however be careful of speculation (ex:
“Davis feared license suspension and a lawsuit”)
 He testifies Pinkerson “was upset about the little girl”
Appraisal of emotional condition is proper.
 He testifies as to what injuries Pinkerton had claiming Pinkerton looked like she had a broken back.
Unless the witness is a doctor, he cannot testify to a medical diagnosis. But he can testify that the little
girl was lying prone, and that any movement of her torso produced a response of pain, or that she
seemed unable to move her arm.
 He testifies the car was totaled with damages that looked like they were $5,000.
He can describe physical damage, though the conclusion that the car was totaled may need an expert
opinion. Clearly, the witness cannot testify to a dollar figure, unless he has expertise on this
 He testifies “he looked like she was in a hurry”
He can express this conclusion if he saw things which would reasonably lead him to conclude she was
in a hurry—i.e.: that he saw her enter the car in a rush, backup quickly, she didn’t turn around to look,
 He testifies David did all he could do to avoid collision and could not have stopped in that short space.
These conclusory appraisals are correct if he saw the whole incident, however it could be objected to if
opposing counsel can show that it is not rationally based.


In evaluating the admissibility and the content of expert testimony you must consider FRE 702, 703, 704 and
705. Also keep in mind FRE 615[B](3) (allowing certain necessary witnesses to remain in the courtroom during
other witnesses' testimony).

Rule 702. Testimony by Experts

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.

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court
determines that their probative value in assisting the jury to evaluate the expert's opinion substantially
outweighs their prejudicial effect.

Four basic requirements for expert testimony:

1. The subject matter must be appropriate for expert testimony
Helpfulness/Assistance—the expert opinion must be helpful to the trier of fact and "assist the trier of
fact to understand the evidence or to determine a fact in issue."
 Reliability: methodology underlying the expert opinion must be reliable.
 Relevant: it must fit the facts of the case
 Where expertise is only marginally helpful because the subject is simple or familiar, special
education or experience may add little or nothing to common jury understanding, but in such
cases a decision excluding such testimony might better rest on FRE 403.
As a condition to admissibility, the proponent of expert testimony must convince the judge by a
preponderance of the evidence that the methodology is reliable and that it is relevant in the sense it fits
the facts of the case.
2. The witness must be qualified as an expert
 The qualifications need not be formal or academic. It can be based on skills.
 The standard is intended to be lenient. A person with suitable training or education may qualify
even if he is not a specialist or not renowned, and even if he lacks a certification or experience.
 Rule 702 embraces people with practical experience but no formal training.
3. The expert should possess reasonable certainty or probability regarding the opinion
 The opinion must be more than mere guess work. It must be something more than mere
speculation (ex: a Dr’s opinion must be based on reasonable medical certainty.)
4. The opinion must be supported by a proper factual basis provided they are “reasonably relied upon
by experts in the particular field.”
Three acceptable basis for expert testimony:
 Firsthand-knowledge: Facts within the personal knowledge of the expert that he knows of
before the hearing. This is basically what is required of lay witnesses. (ex: the treating physician
who examined the patient provides an opinion as to what was wrong with the patient)
 Facts learned at trial: Facts not within personal knowledge, but facts which are supplied to the
expert in court by the evidence. (This could be testimony heard by an expert while sitting in the
courtroom or information conveyed in a hypothetical summing up what has been previously
 Outside Information/Data: Facts that are of a type that experts in that field would reasonably
rely upon in making out of court professional decisions. The expert could base his opinion on
hearsay, as long as he would reasonably rely upon it out of court in making professional
decisions. This is generally information the expert gleans before trial by consulting other sources.
 FRE 403 is in play here: we face the difficulty of admitting evidence susceptible of misuse
of the information.

Problem 9-C—“They saw it the same way I did”

The expert (Dr. Weaver) wants to testify as to what other urologists (11 colleagues) have said.
What the Expert is allowed to testify to:
 She is allowed to testify to the standard of care in Tampa, because she has personal knowledge of
that. (the prevailing standard of care in this area) She practices there as a urologist, and surely has
insight and knowledge based on training and experience that help her address this matter.
 She can use knowledge from other experts to generate her own opinion as long as it is her own
opinion. We allow her opinion to be based upon inadmissible hearsay (opinion of other people).
 She can read treatises, books, and consult with other experts, but she can’t tell the jury what these
outside sources said (i.e.: you cannot say “the other urologists share my view”—You cannot say other
experts agree with you or are vouching for you)
What the Expert is NOT allowed to testify to:
 The court says that unlike the other experts, Dr. Weaver became a conduit for inadmissible hearsay
(the opinions of other experts). You cannot turn other expert opinions into your evidence. You can
merely use them for your own opinion.
 You cannot acquire knowledge specifically for a case and then use that knowledge of others to relay
that to the jury,
 Cannot testify to the ultimate issue (i.e.: Cannot say that a Dr. breached the standard of care in
Tampa.) (ex: an expert could not testify that decedent had "capacity to make a will" but could testify
that he knew "the nature and extent of his property and the natural objects of his bounty")
 The reasoning behind this is the same policy reasons for hearsay—you can’t cross examine the other
witnesses as to the basis of that opinion. This creates too much of an inference that the experts agree
with her without them being available for cross examination.
 You cannot substitute a treatise opinion or another Dr.’s position as your own.
 Other opinions can only be used to supplement the expert’s opinion
Bottom Line: An expert must give her own opinion even if she relies on others. An expert cannot bolster his
or her testimony by testifying that a particular treatise or another Dr. supports an opinion. This is considered
“hearsay opinions.” An expert may testify if she relies “in part on consultations with other experts,” but still
the expert may not be used as a conduit.

Using a Text Treatise or Article: Can you get into evidence the content of a treatise or text of whatever
discipline is at issue in the case? The major problem here is the hearsay rule. (This is a form of expertise that is
in writing made out of court). You CAN use it to impeach an expert (but you have to first establish it is
reputable—can show in 4 main ways:)
1. Opponent’s expert actually relied on the treatise in his direct examination
2. Elicit an admission on cross examination (ex: Dr. are you familiar with this treaty? Is it a standard work
in the field?/Is it reliable?)
3. You may call your own expert witness who says the treatise is reliable
4. Judicial notice—the judge can take judicial notice that this treatise/book is a standard book in the field.
Ex: I represent the P who is suing the D alleging the D’s negligence caused serious injury to the
client. The P has holes in the head. In Grey’s Anatomy it says having a hole in your head
adversely affects life expectancy. The expert is claiming holes in your head do not have this
effect. You can use this to impeach or rebut your opponents expert. You are not offering the
content for its truth, you are offering it to show the authorities aren’t all the same way.
Therefore it comes in to impeach the credibility or impeach your opponent’s expert.

The federal rules have liberalized this standard: You can use a treatise in support of your own expert. Your
own expert can say the text is reliable and can read from the text the part that supports the opinion. The
content is admissible for its truth (the learned treatise exception to the rule against hearsay). If you establish
the document is a learned text treatise or article will be admissible for its truth as an exception to the rule
against hearsay. Two limitations:
1. There must be an expert on the stand. This information must be filtered through an expert witness
(either your own expert in which the text will be supportive, or your opponents expert in which it will
be contradictory)
2. The treatise does not go to the jury. It only comes into evidence by being “read” to the jury.

Qualifying a witness
1. When a party calls an expert witness, usually the first questions establish that the matter at hand could
benefit from expertise. Then comes the foundation. In the case of a professional person (such as a
physician or engineer), usually the calling party brings out:
 educational background, including degree and perhaps certificate or license to practice,
 experience, such as employment or practice in the area to be covered by the questioning, and
 familiarity with the subject in suit. The pattern is similar (usually less elaborate) with skilled
people having informal expertise resting on experience.
2. Qualifications are important, but you can have the most qualified expert in the world and her field
still has to be relevant to the case and her opinion must still have a reasonable basis.
3. Deciding whether a person qualifies as an expert, the sufficiency and acceptability of the data and the
acceptability of the science is a question for the judge under 104(a)
4. Note the difference between voir dire (presumptively to take place without the jury) and cross-
examination (which takes place before the jury) in determining whether someone is qualified as an
5. The court will rarely appoint expert witnesses

Admitting Expert Testimony After Daubert: (Frye is dead: The question is how much of a lower standard have
we allowed after Daubert)

Preliminarily: The Judge decides whether the expert is qualified (FRE 104(a)). The judge must also determine
if what the expert is testifying to is “scientific knowledge” that will assist the trier of fact. The reasoning or
methodology underlying the testimony must be scientifically valid and the reasoning or methodology must be
able to be properly applied to the facts in issue. (look at factors below that judge will rely upon in making his
1. Relevance of Expert Testimony (FRE 401, 402)
"Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would be
without the evidence." The Rule's basic standard of relevance thus is a liberal one.
2. Reliability of Expert Testimony [Daubert, FRE 702]
Under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted
is not only [1] relevant, (assist the trier of fact) but [2] reliable (an expert has “scientific knowledge”).
(a) Qualified Expert
(b) Valid Science
3. Balancing probative value and the six FRE 403 dangers. (FRE 704)
This is always the final hurdle, but it should be kept in mind at every stage). Expert evidence can be
both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the
judge in weighing possible prejudice against probative force under FRE 403 of the present rules
exercises more control over experts than over lay witnesses.
4. Scientific Evidence:
Assuming the experts are qualified THE JUDGE could:
 First, admit the evidence because the experts are qualified and let the jury resolve the
dispute. (this is highly disfavored method, because you are basically putting a lot in the hands
of the jury)
 Second, decide for yourself whether the plaintiff’s proof is valid science and admit or exclude
accordingly. (Daubert)
o Malavet thinks this gives too much differential to the judicial community and too much
difference on the jury to sort it all out. (However, FRE 701, 702, and 703 were all
amended in 2000 to require the court to exercise more authority over expert testimony,
at the admissibility stage.
 Third, defer to the broader scientific community for its judgment on the validity of the science,
asking the proponent to show not only what the proof means and what it is, but also to show
that scientists generally agree with it. (Frye).
o Gives trial judge a way out
o Frye allows the judge to say, "I'm not going to let everything in and I'm not going to
resolve scientific disputes myself; if I exclude anything, I'll do it because other scientists
don't accept the proof and I can tell the expert it's not my opinion that counts, but the
verdict of other scientists."

These cases liberalize the standard of what constitutes “good science” or “good expertise” under FRE 702—
In other words, the FRE superseded the Frye test of deferring to the “scientific community.”
Daubert v. Merrell Dow Pharmaceuticals (overruled Frye v. United States)
Children are born with birth defects because the mothers took a medicine which was told to cause. Here we
have experts on both sides that were qualified under FRE 702. The validity of the science becomes the major
question—petitioners file a motion for SJ arguing the scientific knowledge put forth by the plaintiffs is not
generally accepted practice (in other words, if the court applies Frye, the evidence should not be admitted
because it is not generally accepted practice in the scientific community)
 District Court, using the Frye standard, concluded opinions that diverge significantly from the
procedures accepted by recognized authorities in the field cannot be shown to be generally accepted
as a reliable technique.
 SC held the Frye test is too restrictive. FRE 702 gives us the scientific reliability standard. For purposes
of litigation, it has to be a legal evidentiary standard not a scientific one: meaning science does not
have to be absolutely sure of the fact. “We cannot afford, as a matter of public policy, to wait as long
as scientists do to declare something science.” (In this case, we aren’t going to wait until science says
this pill definitely caused the birth defects)
 Daubert makes it a legal rule of reliability: the science must be reliable enough to assist the jury (it is a
lower standard than the reliability called for in Frye.) It must meet the requirements of Rule 702, not
the requirements of “peer reviews.” See the factors below.
 The trial judge acts as a gatekeeper, determining whether the proffered evidence is scientifically
valid and relevant to the case at hand. It is up to the court to make this finding before the jury hears it.
 Cross examination and the presentation of contrary evidence will allow the jury to determine whether
the proffered scientific evidence is ultimately credible.
 However, Florida is not a Daubert state. Frye is still the law in Florida. Florida has expressly declined
to adopt more lenient Daubert standard."

Implementation, Scientifically Valid, Factors

There is a distinction between scientific validity and scientific reliability. Scientific validity may be enough to
make the testimony legally reliable.

The Factors in Determining Scientific Knowledge: as noted above, an inference or assertion must be derived
from scientific methods and be supported by appropriate validation. Factors (non exclusive) the court can
analyze to determine whether a theory or technique is scientific knowledge:
1. Tested: Has the theory been tested?
2. Peer Review and Publication: Another pertinent consideration is whether the theory or technique has
been subjected to peer review and publication.
3. Scientific reliability: does the application of the principle produce consistent results?
4. Control Standards: should consider the known or potential rate of error, and the existence and
maintenance of standards controlling the technique's operation. They have to apply the right
procedures and that those procedures were followed during the testing.
5. General Acceptance: Finally, "general acceptance" can yet have a bearing on the inquiry—"general
acceptance" is not a necessary a precondition to the admissibility of scientific evidence under the FRE-
especially FRE 702, but it definitely helps!
**These factors should be weighed/balanced at the FRE 403 stage

Criticisms of Frye and Daubert:

 Frye excluded too much evidence that was probably good science.
 With Daubert, Courts are being flooded with "junk science," and are taking more responsibility for risk
management than they could handle.
 Malavet says:
o It is hard to deal with scientific evidence in courts of law
o Judges have shown a reluctance to become, "amateur scientists."
 The Authors argue that while Daubert is not so bad, abuse of discretion review is. They would prefer
de novo, or at least mixed law/fact review.

Kumho Tire
Kumho Tire generally expands Daubert to apply to all expert testimony, not just to scientific evidence. The
 Extends the Daubert standard beyond the parameters of "scientific evidence" to all expert testimony
 Lays such stress on flexibility and "discretion" that it seems almost to dilute Daubert.

In the case there was an automobile accident, the P’s sued Kuhmo Tires saying the tires were faulty and
therefore caused the crash. Plaintiffs relied on deposition testimony from an expert in tire failure analysis. He
claimed the tires failed and caused the crash.
 This testimony is clearly relevant because it goes to the improperly designed tire
 It is being given by a qualified expert
 The issue the court needs to determine is if this is accepted scientific methodology is considered
“scientific knowledge.”
 The trial court ruled Carlson's testimony inadmissible because his methodology failed the reliability
requirement of FRE 702 and Daubert, and granted summary judgment for the defense.
 The defense tried to argue the scientific knowledge requirement should not be used on non-scientific
evidence. Court said no! The Rules grant that latitude to all experts, not just to "scientific" ones.

FRE 702 Rule applies its reliability standard to all "scientific," "technical," or "other specialized" matters
within its scope. The Rules grant that latitude to all experts, not just to "scientific" ones.
 It would be difficult, if not impossible, for judges to administer evidentiary rules under which a
gatekeeping obligation dependeds upon a distinction between "scientific" knowledge and "technical"
or "other specialized" knowledge. There is no clear line that divides the one from the others.
 The Rule, in respect to all such matters, "establishes a standard of evidentiary reliability." The trial
judge must determine whether the testimony has "a reliable basis in the knowledge and experience of
[the relevant] discipline."

Flexibility in Judging Reliability

A trial judge, in determining the "admissibility of an engineering expert's testimony" may consider several
more specific factors that Daubert said might "bear on" a judge's gate-keeping. The factors which are
considered depend on the specific type of issue you have before you determination. The gatekeeping inquiry
must be "tied to the facts" of a particular "case,” depending on the nature of the issue, the expert's particular
expertise, and the subject of his testimony."

Generally, most fields are acceptable technical areas and acceptable science. There are exceptions:
 Stuff that has been put into question
 Junk science—such as speaking to the dead, ESP, and
 Science we are still skeptical of: Lie Detecting Tests; truth telling

Abuse of Discretion Standard:

A court of appeals is to apply an abuse-of-discretion standard when it "reviews a trial court's decision to
admit or exclude expert testimony."
 This means a trial judge has the discretionary authority, reviewable for its abuse, to determine
reliability in light of the particular facts and circumstances of the particular case. (FRE 702) Basically,
the trial court is fine as long as their holding is not clearly erroneous.
 In Kuhmo, the SC held the District Court did not abuse its discretionary authority.
 Scalia, O’Conner and Thomas concurred in the opinion, agreeing that trial judges have discretion to
"choose among reasonable means" of appraising science; they do not have discretion to perform the
gatekeeping responsibility "inadequately." This seems to suggest that abuse of discretion review may
not be appropriate in this area. They think de novo review would be more appropriate. (i.e.:
determining the case as if no prior trial had been held)
 They claim you should defer to the trial court on what the relevant factors should be used, but review
whether the trial judge came to the right conclusion based on those factors. The trial court is in a
better position to determine what factors to consider. But in the decision regarding whether the
factors match the conclusions the trial court came to, the appellate court should be allowed to make
its own conclusion on de novo review.

Pragmatic Relevance
Unfair Prejudice under FRE 403:
Unfair prejudice may (1) inflame or anger the jury binding the issue of guilt to the D because of the evidence
or (2) induct the jury to draw a general propensity inference rather than using the proof in a more
particularized manner.
Balance—in deciding whether the risk of unfair prejudice substantially outweighs probative worth, the judge
considers such factors as
 Prosecutor’s need for the evidence
 The degree of probative worth on the particular question; and
 The nature of the prior misdeeds (is it inflammatory?)

State v. Chapple
Defendant was accused of killing someone related to a drug deal. Two witnesses said he did it.
Prosecutors submitted gruesome pictures of the deceased. On appeal, D contends the trial court erred by
admitting pictures of the “charred body and skull of the victim.” The pictures were in vivid color and were
extremely gruesome (court goes into grave detail explaining the gruesomeness).
 Evidential hypothesis being proffered by the prosecution: the pictures prove the witness’s statement
that the deceased was shot in the head (cause of death) and that it was homicide (manner of death).
The two things the prosecution must establish.
 Relevancy is not the sole test of admissibility for the trial court. Where the offered exhibit is of a
nature to incite passion or inflame the jury-and the photographs in the case at bench certainly fall
within this category—the court must go beyond the question of relevancy and consider whether the
probative value of the exhibit outweighs the danger of prejudice created by admission of the exhibit.
 In this case, the photos were relevant under FRE 401 to establish a case for first-degree murder.
However, they had little probative worth. The fact that the victim was killed, the cause of his death,
and what was done to the body after death were not in controversy. The facts issued in the
photograph were simply not in dispute or at issue. The only issue being tried was whether it was the D
that did it-- the defense was saying we admit the person died of a violent death, but it is not our client
who killed him!
 Because the photographs could very well have inflamed the minds of the jury enough to impair their
objectivity, there was definitely a danger of unfair prejudice. Since there was so little probative value
to these photographs and since their capacity to inflame is so obvious, the admission was an abuse
of discretion. The probative value of the relevant photos was thus outweighed by the danger of unfair

Times when pictures probably would be allowed to be admitted:

 To identify the deceased
 To show the location of the mortal wounds
 To show how the crime was committed
 To show the brutality of the crime (when there is a standard for the crime that brutality matters)
 To aid the jury in understanding the testimony of the witness (although an autopsy report may do just
as good)

Notes from Review:

Abuse of Discretion verses De Novo
Err on the side of using the abuse of discretion review unless the judge has made a decision as a matter of law.
The more subjective the decision is, the more likely an abuse of discretion review will be used.
Malavet says we have read enough to know the court sort of willy nilly decides what standard they are going
to use depending on if they want to affirm or reverse.
To AFFIRM: This was a factual finding and we are therefore deferring to the factual finding of the court
TO REVERSE: This was a finding as a matter of law
On the test, Malavet will say this is the result you SHALL reach. So if you need to Affirm you would want to
use the abuse of discretion. If you want to reverse, you would want to use De Novo.

Credibility-whether something was said
Prior Bad Acts-whether the act was actually done.

Bourgaly and Huddleston only deal with situations where you have predicate facts (independent facts that
need to be established before a piece of evidence is admitted.)

Whether you use 104b or 104a will determine who decides who whether the predicate facts occured.

Preponderance standard under 104(a) Its more likely than not this predicate fact happened.
Scintilla standard under 104b A reasonable jury could find this (predicate fact) happened.
1. Is There a Timely and Specific OBJECTION?
Unless there is, the trial court can admit almost any kind of evidence. (§33)
2. Is There a Proper FOUNDATION?
Is there a showing that the evidence comes from a source that is legally competent?
a. Oral testimony
Is the witness competent to testify? (§§925 et seq.) Remember that the witness almost always is
b. Real evidence
Is the item properly identified and its authenticity established? (§§1280-1294)
c. Documentary evidence
Is the document authenticated (proper foundation laid)? (§§1315-1346)
d. Scientific evidence
Is the experiment or test reliable? (§§1380-1429)
e. Procedure
Has the judge made a determination as to proper foundation (or other preliminary fact) prior to
admitting the evidence? (§§62 et seq.)
3. Is the Evidence Presented in Proper FORM?
a. Form of questions
Is the question misleading, argumentative, conclusionary, etc.? (§§1072 et seq.) Consider the
limits on use of leading questions with “one’s own” witness.
b. Form of answers
Does the answer state an opinion or conclusion of the witness? (§1078)
(1) Are the requirements for admissibility of lay opinion evidence met? Consider
whether the evidence is based on personal observation and helpful to the jury. (§§992-1015)
(2) Are the requirements for admissibility of expert opinion evidence met? Consider the
expert’s qualifications, basis of opinion, and helpfulness to the jury. (§§1016-1071)
c. Contents of documents
When the contents of a document are in issue, will the “best evidence rule” require that the
“original writing” be produced? Consider whether the document is admissible under an
exception to the rule or whether nonproduction of the original is justified. (§§1347-1369)
d. Qualification
Keep in mind that evidence in any form may be used to “refresh” a witness’s memory, even
though the evidence itself is not admissible. (§§1097-1109)
4. Is the Evidence RELEVANT?
Does it have probative value?
a. Purpose of evidence
Determine the purpose for which the evidence is offered. (§§91-93)
(1) As affirmative proof
Does it tend to prove any fact in issue under the pleadings or explain or clarify such
facts? (§94)
(2) To impeach
Does it reflect on the credibility of a witness? (§§1157 et seq.) Consider:
(a) Grounds for impeachment (conviction of crime, bias, prior inconsistent statement,
etc.) (§§1162-1239);
(b) Permissible methods of impeachment (cross-examination vs. extrinsic evidence)
(c) Evidentiary effect of impeachment evidence (whether also admissible as
substantive proof) (§§1191, 1234-1239); and
(d) Limitations on impeachment (“one’s own” witness; “collateral” matters) (§§1085-
1094, 1240-1241).
(3) To rehabilitate
If a witness has been impeached, does the evidence restore credibility? (§§1242-1268)
b. Doctrine of limited admissibility
Is the evidence admissible for one purpose but not another? (§§100-103) If so, the jury must be
instructed (upon request) to consider it only for the relevant purpose.
5. Even If Relevant, Is the Evidence Subject to Some EXCLUSIONARY RULE?
Are there countervailing factors (some mandatory, others discretionary) that outweigh the probative
value of the evidence and require its exclusion?
a. Mandatory rules of exclusion
(1) Rules of PRIVILEGE
Does a privilege favoring protection of particular relationships (husband-wife, attorney-
client, etc.) or interests (against self-incrimination) apply? (§§635 et seq.) Consider:
(a) Who is the holder of the privilege (i.e., who may assert it)? (§§644-648)
(b) What is the scope of the privilege (assertable in what types of proceedings, covers
what kinds of evidence)?
(c) Are there any indications of waiver (by consent, failure to object)? (§§654-660)
(2) HEARSAY rule
Does the evidence consist of statements or conduct outside of court, or documentary
evidence, so that the opportunity for cross-examination is precluded? (§§247 et seq.) If
so, consider:
(a) Is the evidence being offered to prove the truth of the assertion (or the declarant’s
belief in its truth)? (§§264-292)
(b) If the evidence is hearsay, are there recognized factors establishing its
“trustworthiness,” and sufficient “necessity” for its use so as to justify an exception to the
hearsay rule? (§§299 et seq.) Consider also whether other requirements of the exception
are met (availability or unavailability of declarant, personal knowledge, etc.).
Is the evidence being offered to show a person’s trait of character (e.g., carelessness,
dishonesty) for the further purpose of showing that the person acted in conformity with
that trait on a particular occasion? If so, the evidence is generally inadmissible character
evidence. (§§138-140) But consider:
(a) Whether the evidence can be admitted under an exception to the rule against
character evidence (e.g., the accused in a criminal case may introduce evidence of good
character and the prosecution may rebut that evidence; under certain circumstances, the
character of the victim in a criminal case may be examined; and character evidence may
be used to prove a defendant’s propensity to commit a sex crime). (§§162 et seq.)
(b) If specific act evidence, can it be used for another purpose, such as to show
motive, intent, knowledge, plan, preparation, etc.? If so, does the danger that it will be
used prejudicially to show bad character substantially outweigh its probative value for the
proper purpose? (§§141161)
If scientific evidence is being offered, has a sufficient foundation been laid showing that
the evidence is accepted or scientifically valid? (§§1381-1399)
Does the strong policy of the law to uphold written instruments over conflicting oral
testimony render otherwise relevant oral testimony inadmissible? (§§1523-1524)
(a) Is there an integrated written agreement? (§§1533-1538)
(b) Is the parol testimony in conflict with that agreement—or is the testimony merely
collateral thereto or explanatory thereof? (§§1540-1557)
(c) Is the parol admissible under an exception to the rule (to show fraud, condition
precedent, etc.)? (§§1558-1567)
Is there some other policy of the law that precludes admission of the evidence (e.g.,
policy of encouraging settlements, insurance coverage, repairs, etc.)? (§§222-245)
b. Discretionary grounds
Is there a risk of undue prejudice, delay, confusion of issues, or lack of trustworthiness that
outweighs the probative value of the evidence? These are important means of excluding
evidence. (§§104-110)
6. What is the EFFECT of the Evidence?
Once particular evidence is held admissible, its evidentiary effect (weight) is usually up to the trier of
fact, with the following qualifications:
a. Evidence meeting burden of proof
Is the evidence admitted legally sufficient to prove each element of the party’s case, thus shifting
the “burden of going forward” with the evidence to the adversary? (§§1466-1485)
b. Substitutes for evidence
If evidence of some fact is lacking, are there any substitutes for formal proof—presumptions or
judicial notice?
(1) If the evidence creates a presumption
Is the presumption “conclusive” or “rebuttable”? (§§1496-1522)
(a) If “rebuttable,” is there any counter-evidence? If so, consider whether the
presumption is entitled to any further evidentiary effect.
(2) Judicial notice
Is judicial notice on the matter mandatory or permissive? (§§1430-1455)
7. Policy Factors
Close cases may often be resolved by considering the major purposes of the rules of evidence: i.e., “to
secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of
growth and development of the law of evidence to the end that the truth may be ascertained and
proceedings justly determined.” [Fed. R. Evid. 102]"